Law Firm Sues Competitor Over Copied Brief
Last week, the law firm, Hsuanyeh Law Group (HLG), filed a copyright infringement lawsuit against their larger competitor, Winston & Strawn (W&S), alleging that the firm had copied a brief they had filed in the same court.
According to the lawsuit, the law firms are representing defendants in two separate patent cases filed in the US District Court for the Eastern District of Texas. Both cases involved the same plaintiff, Unification Technologies, and had largely similar facts surrounding them.
This was so much so that the cases were consolidated on August 8, 2023, with HLG’s case being listed as the lead one. However, the two defendants did not enter into a joint defense agreement and each firm continued to represent their clients separately.
HLG claims that, on August 23, 2023, they filed a Rule 12 as part of that case and said that W&S then simply copied their motion nearly verbatim and filed it as their own the next day. As such, HLG then registered their version of the motion with the United States Copyright Office (USCO) on August 30, 2023.
The lawsuit further claims that after noticing the copied brief, HLG repeatedly attempted to reach out to both W&S as well as people connected to the company. However, at every turn they claimed they were rebuffed, and, on December 15, they received a formal reply from the firm’s assistant general counsel, which formally rejected their claims.
That reply didn’t focus heavily on whether copyright infringement had or had not occurred, but argued that, even if it had, the damages would likely be very low. They claimed that HLG would likely be ineligible for statutory damages since the infringement occurred before the registration and that, in their view, the work was not published.
However, the letter goes on to say that, even if statutory damages are awarded, they would likely be minimal. The letter cites the lack of clear actual damages, no indication that the infringement was willful and that they simply could have joined the motion, which they claim is difference of “form over substance”, as evidence against higher damages.
The lawsuit represents a very rare copyright battle over a legal filing. Though not completely unheard of, such cases are incredibly rare, raising questions about how copyright applies in this case and whether copying a brief is copyright infringement at all.
However, the case also examines norms in the legal field around the reuse of content and citation of work.
The Copyright Question
Copyright lawsuits over legal filings are exceedingly rare. Simply put, law firms don’t routinely try to enforce copyright in their filings, largely accepting that they are part of the public record and will be widely copied.
That said, it is not unheard of, and this latest lawsuit cites two separate cases: White v. West Publishing Corp and Newegg Inc. v. Ezra Sutton, P.A.
The White case pitted a law firm against a pair of publishers that they accused of infringement for making their various pleadings available in their legal databases. There, the court found that briefs do qualify for copyright protection, however, ruled that the publisher’s use of the documents was a fair use.
This point was driven home by the fact the lawyers had registered the work with the USCO after they shared them.
That was not an issue in the Newegg case, which also bears the most resemblance to the HLG lawsuit. There, Newegg was a co-cross-appellant in a case and offered to share the cost of a brief they planned to file by turning it into a joint brief. That offer was not taken, and Newegg filed its brief, only to have the co-cross-appellant’s law firm use substantial portions of it in their filing.
However, Newegg had taken the step of registering their brief before filing it and the court ruled in their favor, granting partial summary judgement on Newegg’s claim and ruling that the defendants had not successfully established a fair use claim.
Though an important case in this space, the Newegg case is likely not particularly helpful to HLG. First, HLG registered the work after the alleged infringement, which was seen as a major point in favor of fair use in the White case. Second, as pointed out in the W&S letter, the Newegg case didn’t examine an infringement of a public document (Newegg had privately sent a draft of the brief to the firm before filing) and whether the use was an actual infringement, just that it was not a fair use.
That said, W&S’ arguments center more around potential damages. In their correspondence, HLG had threatened W&S with statutory damages of up to $150,000 but W&S pointed out that such damages are unlikely to be awarded.
In their letter, W&S argues that any damages would likely be de minimis, meaning so little the court doesn’t bother with it, or only a few hundred dollars. They cite a lack of evidence that the infringement was willful, the lack of actual damages and the registration of the work coming after the infringement as barriers to significant damages.
To that end, their argument is compelling. Even if HLG can overcome the various copyright hurdles the damages they could claim, most likely, will not be that great. As we saw with a pair of recent photography decisions, courts have a great deal of leeway when it comes to awarding statutory damages but the factors that such a decision is based upon favor the defendant in this case.
HLG will struggle to demonstrate any serious actual damages, other than for the time it took to write/the time that was saved by not writing the brief. Likewise, it will be difficult to prove that W&S acted recklessly or that a high damage award is justified to deter future infringement.
The reason is that copying in the legal field is not only more accepted than in other fields, it is often encouraged and even required.
Copying and Legal Filings
As this essay by former ABA Ethics Counsel Dennis A. Rendleman points out, plagiarism in the legal field is very different from academic, creative, journalistic or other kinds of publication.
The reason, as Rendleman and his sources put it, is because the legal field is not as concerned with originality as it is with quality and persuasiveness. If an argument is a good argument and wins the case, then lawyers are encouraged, even required, to use it even if it isn’t original.
This can extend into word choice. As Joe Patrice on Above the Law put it, “Exercising originality in word choice is often damn near malpractice.” When working in a common law system, copying is often necessary and, as Patrice said, “is sort of the whole point.”
If W&S had copied and republished a short story, a journal paper or a news article, there’s not much doubt they would immediately be deemed plagiarists and likely face a copyright infringement lawsuit with a realistic threat of a hefty damage award.
But they didn’t. They copied a legal brief that was in the public record. The legal field, as Rendleman points out by citing professors Carol M. Bast and Linda B. Samuels, is collaborative, both within a firm, between firms and with the reliance on previous documents.
To be clear, this doesn’t give lawyers an ethical free reign to copy whatever they want. As Rendleman notes, this time citing Colin Mcgrath, Benjamin G. Shatz, while “Litigation is different, with far more room for borrowing ideas and writings…. significant unattributed copying may cross the line.”
So, it is at least possible that W&S crossed the line both legally and ethically. However, proving that they did so will prove challenging given the nature of the field.
While there’s understandable disagreements about whether W&S did anything wrong, the fact that these disagreements both exist and are reasonable make it difficult to claim that they acted egregiously enough to warrant significant damages.
Bottom Line
From an academic perspective, this case is extremely interesting. It will be a case to watch, largely because disputes like this one are so rare.
But they are rare for a good reason. While lawyers and others in the field may have differing views on what copying is and is not appropriate, there’s not much doubt that copying is generally more acceptable in the legal field than elsewhere.
While creativity is certainly an important trait for lawyers to have, they are praised and regarded far more for their effectiveness than their originality. As such, when disputes do arise over copying, they are usually handled either between the firms directly or are just ignored because, even if it is seen as a slight, it’s not seen as a significant one.
It could be that HLG’s lawsuit represents a shift in thinking on that issue. However, there’s no disputing that, despite widespread copying in the legal field and at least some of that copying not being welcomed by the copied party, such cases almost never become copyright infringement lawsuits.
Simply put, this just isn’t a legal or ethical norm at this time. Perhaps HLG hopes to establish a legal precedent, but it’s unclear if and how such a precedent would really benefit HLG or other law firms.
The legal field has gotten this far without much involvement of copyright, injecting it at this point and in this way seems like a path to creating chaos rather than legal clarity.
In the end, I largely agree with W&S, even if this is ruled to be an infringement, it’s also not the best use of the copyright system and it’s unlikely to result in significant damages for HLG or anyone else.
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