The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents
56 Pages Posted: 8 May 2006
Breaking from centuries-old tradition, lawyers have recently begun threatening one another with claims of copyright infringement based on the unauthorized appropriation and adaptation of their legal documents, particularly litigation documents such as complaints and briefs. If these threats deter lawyers from adapting those documents, the cost of quality legal representation will increase significantly. This would place such representation out of reach of larger segments of the public and impair the legal system's efficiency. This article considers how copyright law should weigh the effect of the potential harm to the public from decreased access to that level of legal representation.
The article concludes that many memoranda of law, as well as a small number of complaints, likely contain expression entitled to copyright protection. Nevertheless, courts should permit attorneys' unauthorized adaptation of copyrighted litigation documents as fair use for two reasons. First, penalizing attorneys would not advance copyright's goal of providing incentives to create additional works, because subsequent unauthorized use does not diminish their market value. Second, because of the presence of market failures, the copyright owners do not license their documents, as one might otherwise expect: unfortunately, both a substantial number of hold-outs as well as transaction costs thwart frequent licensing; moreover, the marketplace is ill-equipped to permit the authors to capture the increased value to the public from those documents' dissemination.
As a result, enforcement of the copyright monopoly as to litigation documents would unnecessarily stifle progress and prevent both lawyers and the public from securing the full benefit of the work. As this article demonstrates, copyright's fair use provision was intended, in part, to permit use for such societal benefit and thus should shield lawyers accused of copyright infringement in such circumstances.
Keywords: Copyright, fair use, market failure(s), transaction costs, licensing, litigation document(s), legal documents, brief(s), memorandum of law, memoranda of law, complaint(s), attorney(s), lawyer(s), Campbell, Acuff-Rose, Sony
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