Thomson Reuters Sued Over Use of Facta in Litigator

An Ontario Superior Court of Justice judge has certified a class action lawsuit against Thomson Reuters, according to the most recent issue of The Lawyers Weekly [the decision can be found on CanLII: 2012 ONSC 1138]

The lawsuit, launched in 2010 by Toronto immigration lawyer Lorne Waldman, alleges that the database company breached copyright by copying original documents created by lawyers without their permission and making them available for a fee through its commercial Litigator service. This includes pleadings, court motions, affidavits and facta.

The defendant company argues fair dealing and "implied consent".

As the article explains:

"In opposing the certification of class proceedings, Thomson Reuters argued that Waldman is trying to limit access to publicly filed court documents, asserting this is antithetical to the open court system, access to justice, behaviour modification and judicial economy."

"But Justice Perell ruled there were common issues that should be determined on a class basis, albeit not all of the issues presented for certification by the plaintiff (...)"

"The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) 'reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as the author or owner of court documents?' or (2) 'authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?' "

"The judge also certified common issues raised by Thomson’s defences: 'Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?' "

There is a similar case in the United States, where a class action suit has been launched against West and Lexis for the use of "briefs" (facta) in commercial databases.