The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
To add to the excitement, the case looks like it's been assigned to Judge Jed Rakoff, who has made national headlines twice in recent months, first for rejecting a proposed settlement between the SEC and Citigroup, and most recently for questioning whether the Department of Justice misled the Supreme Court in its representation of facts in a 2009 immigration case.
