The court in Newegg Inc. v. Ezra Sutton, PA (CV 15-01395 TJH C.D. Cal. Sept. 2016) (here), faced some interesting facts. Boiled down, a lawyer representing a co-appellee of Newegg at the Federal Circuit copied a substantial portion of a draft brief written by a lawyer for Newegg, and filed it.
According to news reports, after that, the lawyer withdrew that brief and filed a shorter one which, allegedly, still was based substantially on Newegg’s draft brief. Newegg then registered copyright for its brief after they were filed, covering both the draft and final brief. (My mind wonders… if you register copyright on a draft brief, what’s the scope of waiver?) Then Newegg sued the lawyer for copyright infringement.
Rather than raising fair use right away, the defendant lawyer late in litigation moved to amend the final pre-trial order to add fair use as an affirmative defense; and the plaintiff moved for partial summary judgment on infringement. In an order granting the defendant lawyer’s motion to amend the final pre-trial order to add fair use, the district court held that there was no fair use on summary judgment. Thus, the lawyer was liable.
This creates some very interesting problems for lawyers, and calls to my mind the case a few years ago where a patent prosecutor was sued for using language from a patent in a specification for another client. I’m not a copyright lawyer, and so just raise this case for you to think.