There’s no denying it. Lawyers copy from each other. And sometimes this copying is word for word and paragraph for paragraph.
Many times this copying is done with permission. Lawyers make available sample contracts, license agreements and court filings to other lawyers, knowing full well that they are going to be copied. They probably have benefited themselves from other lawyers sharing their work with young attorneys and are simply paying back the favor.
Others jealously guard their work. In their minds, giving out a contract that they have spent hours and hours writing, crafting and redrafting makes no sense. “Why should I benefit a lawyer I am in competition with for clients,” is their rationale. And I understand their point.
What is rare is not only for a lawyer to directly plagiarize a majority of another lawyer’s work without explicit or implicit permission, but for the offended lawyer to file a copyright infringement suit over it. And last week, a Federal District Court handed down an opinion in just such a case, in Newegg, Inc. v. Ezra Sutton, P.A. 1
Personally, under normal circumstances, I freely share my work with other lawyers. But I’ve been ripped off, as well.
Back in the earlier days of the internet, people were discovering just how lucrative placing pornography on a website was. I was contacted by a striking woman of mixed French and Vietnamese heritage who wished to take advantage of this trend. She wanted me not only to help her file for copyright on the naked images of herself, but to protect the contents of her website as well.
To be fair, the images were not what I would consider pornographic. They were nude pictures, only of her, but nothing that would be out of place in the pages of Playboy. Her concern was of what is commonly known today as “scraping,” e.g. using a computer to scan and copy all the content off a website for placing on a different website. She recounted to me certain girls she knew who awoke one day to find an exact copy of their website was now on a website hosted in Poland.
To this end, I drafted what I jokingly called the “gates of hell” click-through agreement. Since most of the content was behind a paywall requiring credit card payment, with only a few “teaser” photos made available for free, I felt reasonably secure that such a transaction would arguably satisfy the minimum contacts necessary to establish jurisdiction in the United States.
By clicking through and processing the payment, the user agreed:
- Not to copy the pictures or other content.
- Not to share their passwords with anyone else.
- Not to allow minors to peek over their shoulder.
- Not to view the photos in a country where such viewing would be illegal (like Iran).
- In the event of a dispute over whether the rules were broken, consenting to personal jurisdiction in the United States and the Federal District Courts for subject matter jurisdiction.
- Stipulating to the assessment of $20,000 statutory damages for each photograph copied.
- And anything else I could think of.
She was very happy with my work and paid my bill promptly.
And who got ripped off? I did.
She called my office, very agitated.
“They copied everything and put it up on another site!”
“No! Your agreement!”
She provided me with the URL, and sure enough. There, on a totally unrelated “adult” website, was word for word, my click-through agreement.
I guess I should have been flattered. They passed up the opportunity to copy literally hundreds of photographs of a beautiful naked woman to instead copy my legalese. But I was pissed. And so was my client. She had, after all, paid me a nice fee to write it up. Yet, after a few moments thought, there was little that I could do.
While my work was probably covered by copyright, I hadn’t registered the “work” with the copyright office. This meant I could not ask for statutory damages or my attorneys fees. I could only recover my “actual” damages, presumably meaning the fee I charged to draft the click-through agreement in the first place. My cost in trying to litigate the matter, even if I represented myself, would vastly exceed that amount. I decided to do nothing.
Which is not the case with the matter of Newegg, Inc. v. Ezra Sutton P.A. While no lawyer that I know of registers their “work” with the Copyright Office, the Plaintiff here apparently did. Plus, the need to copy another work is rather unnecessary. As the Court notes, the Civil Procedure Rules allow you to incorporate all or portions of another’s brief “by reference.” 2 Nevertheless, the Court rules:
“Because there is no dispute that Newegg is the owner of a valid and registered copyright for its draft brief, or that Sutton copied substantial portions of Newegg’s draft brief without permission, the next issue is whether Sutton’s copying constituted fair use of Newegg’s draft brief.” 3
Here’s how the Court came down on the four fair use factors:
- Factor one favored the Plaintiff because the “allegedly infringing work was used for the same intrinsic purpose as the copied work,” and the infringing work was not “transformative” because “[h]ere, Sutton did not add new expression, meaning or message to Newegg’s draft brief. Sutton merely made minor and cosmetic changes to the draft brief.” 4
- Factor two only slightly favored the Defendants because while “legal briefs can be the subject of copyright infringement and, by extension, can be captured within the scope of the fair use defense. Because Sutton’s brief is a functional presentation of fact and law, and in accordance with the Supreme Court’s priority in disseminating factual works, the second statutory factor weighs slightly in favor of Sutton.” 5
- Factor three weighed heavily against the Defendants; the Court ruled that the copying was “most, if not all, of the substantive portions of the draft brief, and that Sutton’s use of the draft brief was not transformative…” 6
- Factor four weighed slightly in favor of the Defendants; the Court ruling that the Plaintiff had failed to “provide any evidence that it has ever licensed or sold its briefs, or that there is a market for the licensing or sale of its legal briefs.” 7
This resulted in a finding of infringement, and a denial of the fair use defense.
The reasoning on factor four is a bit of a head scratcher. Certainly, a brief on the specific facts of a case might not be “recyclable,” but certain arguments, lines of logic and the case law that supports them certainly can be. And certainly there is a robust market for legal forms, licenses and contracts, as the people who flock to sites like LegalZoom 8 can readily attest.
And those who steal legalese off adult websites can also attest.