Going back nearly 15 years, we had a story raising the question of whether or not legal filings were (or should be?) covered by copyright. As we noted at the time, it seems pretty clear that, under today’s somewhat absurd copyright, it is entirely possible that such filings are technically covered, though they really shouldn’t be.
The purpose of copyright is to create incentives for creative writing. Lawyers don’t need additional protections of copyright to write a good brief. The advocacy for their clients should be reason enough. And yet, this issue seems to come up every so often. We wrote about it again around a decade ago when Newegg sued a lawyer who copied their brief.
In that case, it was definitely sketchy behavior on the part of the lawyer who copied the brief. They were both defending against the same patent troll, and had talked about filing a brief together, but later chose to go it alone. But the lawyer still asked to see a draft of the brief Newegg planned to file, copied much of it, and actually filed it before Newegg. Extraordinarily sketchy, but not sure you really need copyright to deal with that.
Now we have two more stories regarding copyright on legal briefs. First up, late last year, a boutique law firm, Hsuanyeh Law Group, sued the much larger Winston & Strawn, claiming copyright infringement in a brief.
As in the Newegg situation, this case involves the two law firms defending separate defendants against the same patent trolling firm (the complaint also cites the finding in that case that such copying is not fair use). In this case, the plaintiff notes that after it filed a brief in the case, a lawyer from the defendant texted its lawyer to praise the brief:
On August 23, 2023, immediately after HLG’s filing of its Rule 12 Motion, Defendant Three reached out to Dr. Chang via instant messenger WeChat, transmitting a screenshot of the first page of HLG’s Rule 12 Motion and commending in the Chinese language that HLG’s Rule 12 Motion is “impressive.” No authorization was sought to copy or otherwise use HLG’s Rule 12 Motion for the ’267 Case.
Then, the next day, the lawyer filed a very similar brief. The first lawyer (“Dr. Chang”) reached back out to the Winston Strawn lawyer via WeChat to ask what happened, and here’s what apparently happened:
Dr. Chang contacted Defendant Three at least four times via WeChat (once on August 25, 2023, once on September 13, 2023, once on September 14, 2023, and once on November 28, 2023) in an attempt to initiate discussion regarding Defendants’ unauthorized copying of HLG’s Rule 12 Motion. Defendant Three, however, disregarded all of Dr. Chang’s inquiries.
On November 29, 2023, Defendant Three deleted Dr. Chang from his listing of friends on WeChat. As such, Dr. Chang can no longer correspond with Defendant Three through WeChat since then.
Definitely sketchy! But again, not necessarily a situation we need copyright to resolve.
Of course, the smaller firm only registered the copyright on the document a week after the filings were made, so that might limit the effectiveness of the lawsuit. While copyright exists for works without registration, you can really only sue over infringement of works once the copyright has been registered.
As the Patently-O link above notes, the New York City Bar Association has said that copying another brief is generally frowned upon and a bad idea, but that it isn’t really a copyright issue.
The New York City Bar Association’s Formal Opinion 2018-3 provides important guidance on the ethical implications of copying language from other sources into legal briefs and filings. The Opinion concludes that while extensive verbatim copying without attribution is not best practice and risks judicial disapproval, such copying does not inherently violate Rule 8.4(c)’s prohibition on dishonesty, fraud, deceit, or misrepresentation.
The NYC Bar reasons that legal briefs serve to persuade the court on a client’s behalf, not to convey original ideas or analysis. As a result, some copying from secondary sources or prior briefs furthers clients’ interests in efficiency. Additionally, the Opinion emphasizes lawyers’ duties under other ethics rules regarding competence, diligence, candor to the tribunal, and avoidance of frivolous filings. By conscientiously adhering to all their professional responsibilities, lawyers can avoid any deception or other pitfalls from incorporating language from external sources. Ultimately, the Opinion urges attorneys to cite source materials where feasible, while concluding that the Rules of Professional Conduct do not necessarily require attribution.
And, as Joe Patrice notes at AboveTheLaw, the other big difference between this case and the Newegg case, is that, in Newegg, the lawyer copied the text from an unfiled draft brief. Whereas here, the first brief had been filed, which might lead to a more supportive fair use view (once something’s filed, copying it might be more reasonably considered fair use).
Except the crucial distinction in Newegg is that the lawyer lifted from a draft brief. Had the work product already entered the public record, it’s hard to imagine the same outcome. The facts are so specific that the attorney in Newegg is on record that “I offered someone a steak dinner if this case was ever cited or helped make anyone any money.”
But all that aside… why? What skin is it off Hsuanyeh’s noses? It’s not like they can charge Winston’s client for the work. If Winston billed its client for writing a whole brief when it just copied from another successful motion in the same court that would raise ethical issues, but copying a brief to save the client money is just good representation. Does Hsuanyeh want the recognition so prospective clients know they did the heavy lifting here? That’s a fair request, but not a reason to let law firms copyright briefs.
But… that’s not the only case we have on copied legal docs.
Eric Goldman alerts us to a ruling in the 7th Circuit on a similar, but somewhat different issue — though no less silly. Here’s Eric’s summary:
UIRC offers bonds using a private placement memorandum (PPM) and an indenture of trust. UIRC initially manufactured those documents by cloning-and-revising documents prepared by the Idaho Housing and Finance Association. UIRC obtained copyright registrations for two versions of its documents.
UIRC retained William Blair to help promote its bonds. Later, a third party retained William Blair to promote similar bonds, and William Blair cloned-and-revised the UIRC versions to prepare new documents for the third party. (There was no question about the copying–the revised William Blair documents sloppily retained references to UIRC). UIRC sued William Blair for copyright infringement.
But, as the court notes UIRC actually copied most of the original document itself!
UIRC did not independently create most of the language in the documents at issue. Instead, it copied much of the language from the Idaho materials. We agree with the district court that the language UIRC did draft lacks the creative expression required for copyright protection. It is either facts, fragmented phrases, or language dictated solely by functional considerations.
Yeah, maybe don’t copy another document and then sue when someone does the same thing to you, maybe?
Perhaps more importantly, the 7th Circuit found that even the “new” content from UIRC wasn’t deserving of copyright protection:
After excising the copied language, what remains is a mixture of fragmented phrases, facts, and language dictated solely by functional considerations. Fragmented phrases and facts are not copyrightable. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (facts); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (short phrases and expressions). Language dictated solely by function is not copyrightable either. Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480, 481 (7th Cir. 1996).
As above, we return to the Application of Revenues sections of the PPM for UIRC’s first transaction. Some of UIRC’s more substantive contributions are facts or fragmented phrases. For example, it replaced some of Idaho’s language with “Mortgage,” “Assignment of Lease,” and “Collateral Assignment of Rents” in a list of legal documents in the opening paragraph of the section. Elsewhere, it added the phrase “the Loan Agreement obligates the Borrower to (and the Issuer shall cause the Borrower to)” to Idaho’s language in the first paragraph of the section. Other contributions are more substantial. For example, although UIRC used some of Idaho’s language for the payment order section discussed above, UIRC re-sequenced the paragraphs, creating a different order. And the order matters.
But here, and wherever UIRC made substantive additions, it was not creative expression. Rather, UIRC was responding to the demands of function
This makes sense. If the language is purely functional, then why are we even bothering with a discussion of copyright at all?
Again, I understand why the copying may be frustrating or even ethically dubious. But that doesn’t mean it’s copyright infringement.