H/T The Trademark Blog.
The rule articulated here is clear but narrow: “[W]here the
holder of a copyright in a litigation document has authorized a party to the
litigation to use the document in the litigation, this constitutes an
irrevocable authorization to all parties to the litigation (and to their
attorneys, as well as the court) to use the documents thereafter in the
litigation throughout its duration.” It
is not, I think, a copyright rule; if it were, interesting questions would
arise.
Plaintiffs UPRS and Gelb authorized the clients of Kaplan,
an attorney, to file a legal complaint and exhibits written and compiled by
Gelb. Gelb allegedly conducted the
research underpinning the allegations in a class action complaint, located and
obtained powers attorney from several class plaintiffs, and hired Kaplan to
represent the class. The district court
dismissed the class action as time-barred, and Kaplan appealed. He had a falling out with Gelb, and Gelb and
his company (from now on for clarity they’ll be “Gelb”) retained new
attorneys. The class plaintiffs revoked
the powers of attorney they’d given Gelb, and Kaplan remained their attorney of
record. Gelb’s new counsel moved to
withdraw the pending appeal, a motion granted with respect to Gelb but denied
with respect to the other appellants.
The Second Circuit resolved the appeal in the class action plaintiffs’
favor. On remand, the district court
granted the class action plaintiffs leave to file a second amended complaint to
address issues raised in the Second Circuit’s order, and Kaplan did so. Significant portions of the second complaint
and exhibits were identical to portions of the first complaint and exhibits,
and Gelb sued for infringement.
A copyright holder in a litigation document who authorizes a
party to use the document in litigation “necessarily conveys, not only to the
authorized party but to all present and future attorneys and to the court, an
irrevocable authorization to use the document in the litigation thereafter.” This doesn’t mean that permission is
inevitably needed for the use of a copyrighted document (i.e., all of them) in
litigation—rather, the ruling is only about a grant of authorization that is
purportedly withdrawn.
The rationale is the need to conduct litigation, which
requires that parties and their attorneys be free to use documents that are
part of the litigation. They rely on
such documents to establish the nature of the dispute and the facts and legal
arguments at issue. “The courts could not thoroughly and fairly adjudicate a
matter if suddenly in the midst of litigation the parties lost the right to
give the court copies of documents already used in the litigation that support
their arguments. The holder of the
copyright in a document who authorizes a party to use that document in a
litigation knows, or should know, those inevitable consequences of the
authorization.” Thus, authorization for
use is irrevocable “throughout the duration of the litigation” to all parties
and to the court for appropriate litigation purposes. This isn’t like
authorization in a private dispute, where a party often has the right to be a
jerk and disrupt expectations, since what’s at stake is “the ability of the
courts to perform their function. The needs of the courts prevail over the
copyright holder’s selfish interests.”
Assuming (without deciding) copyrightability, that couldn’t
prevent defendants here from creating and filing an amended complaint. A contrary holding would “encourage sharp
litigation practices, undermine the attorney-client relationship, and limit the
district court’s ability to manage its cases.”
Gelb was attempting to influence the class action by a “novel” use of
copyright—Gelb shouldn’t be able to threaten the class action plaintiffs with
the ability to “pull[] the proverbial rug out from under them—by pulling the
complaint out from under the litigation.”
Gelb withdrew from the class action and shouldn’t have such unreasonable
control over its course.
The consequences would be even worse in the usual case where
an attorney is the one who drafts a pleading.
The attorney’s authority over the use of the pleading would interfere
with the client’s authority to control the litigation, and the lawyer’s
pecuniary interests could be pitted against those of her client, at least
potentially, in every litigation. “Under
the theory advanced by UPRS and Gelb, the attorney could deny the client the
right to reproduce the pleading or prepare derivative works if the client fires
the attorney and seeks to hire different counsel.” That would be bad.
Plus, Gelb’s theory would prevent the district court from
exercising its discretion in case management.
“Courts often permit a party to amend a pleading in part but not in
full. Under these circumstances the
court, in effect, requires that an amended pleading retain a portion of the
original pleading. Imposing such a
requirement is within the purview of the district court. The plaintiffs point to no aspect of the
copyright law or its legislative history indicating that Congress intended that
copyright should interfere with that authority.”
The court ended by saying what it wasn’t deciding: it wasn’t
deciding the copyrightability of legal pleadings or other legal documents. It
wasn’t deciding whether authorization to file a document in one case carried
over to other cases. It wasn’t deciding
whether parties could use a pleading for purposes unrelated to the litigation. It wasn’t relying on the traditional law of
license, so it didn’t need the district court’s theory of implied license. And it wasn’t relying on the initial
authorization to Kaplan: even if the class plaintiffs had substituted a new
attorney who’d never interacted with Gelb, that attorney would be entitled to
use the complaint and exhibits as the class plaintiffs’ agent.
So basically, this is like the judicially made-up rule that
professors’ scholarly writings aren’t works for hire, no matter the tension with
the text of the Copyright Act.
Otherwise, it would be a holding about copyright licenses more generally
(and the court says it isn’t, but never says what the alternative to the “traditional
law of license” is). Compare Walthal v.
Rusk, 172 F.3d 481 (7th cir. 1999) (allowing termination at will of
copyright license with no specified term), with Rano v. Sipa Press, 987 F.2d
580 (9th Cir. 1993) (nonexclusive license with no termination date isn’t
terminable until the 35-year termination period passes; this result also implies
that a similar license to create derivative works is irrevocable). Here, the needs of the judicial system
substitute for consideration in making the license irrevocable (but does this
last beyond 35 years? Inquiring minds want to know; my mother’s been litigating
a case for roughly that long).
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