West and Lexis have "fair use" rights to publish searchable versions of briefs

Judge Jed Rakoff of the Southern Districit in New York held that legal publishers West and Lexis did not violate copyright law by publishing searchable versions of lawyers briefs. Their conduct was a protected "fair use" because it was transformative, changing the purpose and character of the works. White v. West Publ'g Corp., 2014 WL 3057885 (S.D. N.Y. 2014).

State did not dispossess owners and thus did not "take' lands in violation of the constitution merely by asserting ownership

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the "mean higher high tide line" or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the "private" or landward side of the line. The Texas General Land Office...

No prescriptive easement for underground sewer pipe because the use was not open and notorious

The Massachusetts Land Court has held that no prescriptive easement can arise no matter how long a sewer pipe has traversed a neighbor's property because the non permissive use was not "open and notorious" and there were no other indications that the pipe was there. 143-145 Nahant Rd, LLC v. Mastoras, (Mass. Land Ct. 2014), 2014 WL 2548094, 42 Mass. Lawyers Weekly 1879 (July 7, 2014). With no easement, the use was likely a trespass although that was a question on remand.

Massachusetts SJC considers remedies for seller's breach of promise to sell

In K.G.M. Custom Homes, Inc. v. Prosky, 10 N.E.3d 117 (Mass. 2014), the Supreme Judicial Court of the Commonwealth of Massachusetts held that a buyer can choose to seek either specific performance or damages when a seller breaches the promise to sell. The issue was hard because Massachusetts allows only specific performance as a remedy for anticipatory breach and the complaint had alleged only anticipatory breach. Because the issue of actual breach was fully litigated and the court found the...

Mortgage can be equitably reformed because of mutual mistake

In a classic application of a traditional doctrine of contract law, the Massachusetts Land Court allowed a mortgage document to be reformed because of mutual mistake. Citibank, N.A. v. Heywood, 2014 WL 2158409 (Mass. Land Ct. 2014). While courts are very reluctant to amend written property documents or contracts because of unilateral mistake, it is standard practice to ignore the written terms of the agreement, despite the statute of frauds, when the evidence shows that it does not reflect the...

Robo-signing mortgage servicer may have violated state false document statute

The Ninth Circuit held that a mortgage servicer that allegedly engaged in robo-signing may well have violated an Arizona statute, Ariz. Rev. Stat. § 33-420, that criminalizes filing false property title documents with the state recording offices. In re Mortg. Electronic Registrations Systems, Inc (Robinson v. Am. Home Mortg. Serv. Inc.), 2014 WL 2611314, 2 014 U.S. App. LEXIS 10934 (9th Cir. 2014). There was evidence that trustee's sale documents were notarized in blank and...

Joseph William Singer

Bussey Professor of Law, Harvard Law School

July 2014