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Copying Pleadings as Copyright Infringement

And we thought we were immune from the risks of IP law that our clients face each day.  If the debacle over patented estate planning techniques were not enough, we now have to be concerned about copying the pleadings of others, lest we face a copyright infringement claim!  The Wall Street Journal Law Blog has an interesting post on this topic.  Most interesting from my perspective for the lack of knowledge of copyright law demonstrated by the comments, presumably from lawyers. 

For example, one comment reads: "Any pleading filed with a court is a public document. There is no story here."  So . . . anything that becomes a "public document" or record automatically loses copyright protection?   I know lots of architects who are going to be surprised that they have lost their copyright protection because someone needed to file their plans.  For those interested, this issue is treated with some detail in the cases that address the copyright protection afforded to model codes and laws that get adopted into law by municipalities.

Another one reads: "It seems to me the complaint is work product and as such is not the property of the firm producing it. If it’s anyone’s property, it is the client’s. This suit should be dropped for lack of standing."  Anyone with a basic understanding of the work for hire doctrine will see the flaw there.  Admittedly, this is one doctrine with lots of misconceptions.

Or how about "If you can copyright a litigation complaint, why not a prospectus?"  Yah - send me your prospectus - we do the registrations for a flat fee of $300.

Interestingly nobody noted the fact that 90% of the material in the complaints has been endlessly recycled and reused (yes - copied), such that it would be very rare for any drafter to claim much as his or her original work in the first place.  Nor were any comments raised about the functional nature of these documents, and the limited way to express the elements of the underlying causes of action, etc.

Posted on Tuesday, May 22, 2007 at 03:43PM by Registered CommenterTim Feathers in | Comments1 Comment

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Reader Comments (1)

"Interestingly nobody noted the fact that 90% of the material in the complaints has been endlessly recycled and reused (yes - copied), such that it would be very rare for any drafter to claim much as his or her original work in the first place. Nor were any comments raised about the functional nature of these documents, and the limited way to express the elements of the underlying causes of action, etc."

I think these are good points in general, but applied to the specific documents in the YouTube class actions, they fall short of answering the question. Given the level of detail of the complaint, it's not enough to say that the expression is functional and allegedly factual in nature. Like in a history book, I would think there is protection for the selection and arrangement of those alleged facts. Taking just one example, if you look at paragraph 47, there are a lot of different ways in which one could express that idea (that YouTube's "private" feature makes it much harder for third parties to detect infringement) -- it's an entirely different situation from copying the standard recitation that "Plaintiff's claims are typical of the class."

I thought the most interesting comment was the one about Rule 11. Unfortunately, it would be for the defendant and not the victim law firms to raise that issue. (Unfortunate in the sense that it doesn't allow the authors to directly protect their interests.)
August 31, 2007 | Unregistered CommenterJust a 2L

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