When Judges Violate Copyright Free License Terms

I came across this anecdote earlier this week, reading in the Israeli press about a judge who quoted in a court opinion an article from the Hebrew Wikipedia, but who failed to mentioned her source. The judge apparently copy-pasted whole sentences from a Hebrew Wikipedia article about umbilical cord blood. Since no references whatsoever were provided, the judge likely violated the terms of the GFDL license controlling Wikipedia content. The Israeli Wikipedia foundation complained about the mishap and was able to squeeze a laconic response from the courts administration, promising this shall not repeat.

A Judge violates the GFDL terms by including the text in an official court opinion – what result? According to the copyleft principle, the conventional rules of copyright apply: The unauthorized use is nothing but a prima facie infringement, even when the violator is holding a judicial position (unless state immunity applies, which is unusual in the case of civil copyright infringement actions). The new Israeli copyright law (entering into force sometime in mid 2008) grants a statutory exception to those who use copyrighted material in the course of legal proceeding (sec. 20). This exception could (and in my opinion, should) be read to cover copyrighted text incorporated in judicial opinions. If this is correct and assuming that the new law applies, the judge can breath again in relief. Despite the fact that the free license was revoked as a consequence of her violation of the GFDL terms, the use was not unlawful.

This episode brought me to think about this scenario more generally, irrespective of specific national laws that may (or may not) provide special a exception to officers of the courts. A judge uses content that has been distributed under a free license (e.g., GFDL or Creative Commons BY) - but violates its terms by omitting the source. The interesting question (apart from the state liability issue) concerns the copyright status of the content now incorporated in an official court opinion. Since court decisions are in the public domain, one may wonder whether the quoted text enters the public domain too. This result is perhaps plausible under the theory that the copyrighted material becomes an integral part of a public domain work, following a rationale similar to the one underlying the merger doctrine.

Here is the problem: Suppose the judge quotes a whole Wikipedia article, an entire poem, a song (remember Pretty Woman?), or entire paragraphs from a novel, say, for the purpose of examining the question of substantial similarity. Does this mean that this content automatically enters the public domain? On the one hand, it would seem unfair to hold that rightholders are stripped of all (or some) of their copyrights only because the work was quoted in a court opinion. On the other hand, if a work (the opinion) is in the public domain, it is one hundred per cent in the public domain. In the case of Campbell v. Acuff Rose linked to above, both Orbison’s and 2 Live Crew’s lyrics are reprinted in full as Appendix A and Appendix B to the Supreme Court’s majority opinion. In that case, one may argue these appendixes are not an integral part of the decision, and therefore, rightholders retain full copyrights, though I doubt whether this is that simple.

It is definitely not that simple when the copyrighted work is reproduced in the body of the decision. As opposed to copyrighted works - which always consist of both protected and unprotected elements, I do not see how one can dissect a public domain work in the same way to distinguish between its free and copyrighted elements. By definition, a public domain work is free in its entirety. The question concerning the status of such content is not merely theoretical. While recent efforts to create comprehensive and free online databases of court decisions gain momentum, the copyright status of the decisions is important. I realize that the instinctive answer is that, of course, court decisions are in the public domain, period. Thus, everyone is free to reproduce and distribute them and also create free databases. However, can the public domain status of a decision be a defense against copyright infringement allegation, raised by a defendant who has taken Pretty Woman’s lyrics from the decision and used it commercially? I am not sure. Any ideas?