The Register reports that a California lawyer has written to the Chief Justice of that state to object to the state Supreme Court’s practice of passing lawyers’ briefs on to the commercial publishers, LexisNexis and Westlaw, who then sell access to them. It seems from Edmond Connor’s letter to the court that he is principally concerned about the profit-making aspect of the situation as a violation of copyright, rather than about the simple public availability of documents prepared for litigation.
At an earlier time all briefs filed with the California Supreme Court had been copied four times and placed in Depository Libraries, where they might be consulted. The current practice sees the commercial publishers scanning (with OCR) the printed briefs supplied to them by the court.
Mr. Connor has proposed a changed practice in which commercial publishers would be able to sell access to only those briefs whose authors have given permission and would have to share their profits with the authors. As well, Connor proposes, the commercial publishers would agree to provide Depository Libraries with electronic copies of all briefs free of charge.
The Supreme Court of Canada now publishes all factums submitted after February 9, 2009. These can be found via the SCC website page on an appeal’s Case Information; the menu in the left sidebar contains a link to “factums”. Because all submissions to the Supreme Court must be electronic as well as printed, there is no need to scan the factums, in PDF.
I don’t know whether Canadian commercial publishers bother to try to sell SCC factums; it would be foolish for counsel to pay when they’re available for free. Nor am I sure about how copyright law applies to SCC factums, though I suppose that the fair dealing and research exceptions would apply, if courts weren’t prepared to find that submitting documents in litigation transferred copyright to the court in question and, hence, the Crown.
So far as I know, memoranda to provincial appellate courts are not currently available in electronic form, whether via commercial publishers or otherwise.