Second Circuit: Fair Use Doctrine Protects Submission of Entire Copyrighted Work In Judicial Proceeding

In Hollander v. Steinberg, (10-1140 cv April 5, 2011), the Second Circuit applied the fair use doctrine, 17 USC 107 to filings in judicial proceedings. An author claimed that his essays were unpublished and that his adversary filing them in their entirety in a judicial proceeding was copyright infringement.

The decision is a "Summary Order" which under Second Circuit rules is not supposed to have any precedential value, but which may now be cited under Federal Rule of Appellate Procedure 32.1 and the Second Circuit's Local Rule 32.1.1.

A "Summary Order" is proper when the panel believes that a decison should have "no jurisprudential effect".  Issuance of summary orders is controversial, since our system of case law is based on precedent, not on the subjective belief of judges that their opinions ought to be ignored.

From the New York City Bar, full 1998 report criticizing a prior rule barring even citations to unpublished opinions that led to the currrent rule which permits parties to at least cite Summary Orders here:

The Federal Courts Committee believes that this complete prohibition on the citation of summary orders does not serve the interests of justice or judicial economy. The pervasive use of summary orders has created a vast body of unpublished decisions which are often pertinent to issues arising before the Court, but which cannot be brought to the Court's attention under the current rule. The Committee is aware of cases where the Court has previously ruled by summary order on the precise contention being made in a pending case, on indistinguishable facts, and of other cases where a summary order may be the only authority on point.


Of particular note in Hollander is that a copyright owner's market for a work would not be destroyed by publication of the work on the court's PACER system because retrieving it from PACER is cumbersome.

Finally, the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4), clearly favors Steinberg. With this factor, “[t]he focus . . . is on whether defendants are offering a market substitute for the original.” NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481 (2d Cir. 2004). “[O]ur concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.” Id. Should Den Hollander offer his essays for sale, it is highly unlikely that potentially interested readers would even be aware of the essays’ presence in a court file, let alone choose to acquire copies by the cumbersome methods of visiting a courthouse to make copies or using PACER. And in any event, Den Hollander has offered no evidence that Steinberg “usurped the market” for the essays by submitting them as exhibits in judicial proceedings.

So we have in Hollander a  fair use decision that the Second Circuit has decided should be ignored.

Decision below:

Hollander v Steinberg

More on the fair use doctrine here.

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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Second Circuit Local Rule: Attorneys Who Fail To Apply for Readmission Will Be Removed from the Rolls

Starting July 1, 2011, the Second Circuit Court of Appeals will start removing from its rolls attorneys who do not apply for readmission.

Many lawyers do not realize that when they are admitted to the bar of the state in which they practice, the story of being admitted to courts does not end there.   Federal district courts and appellate courts each require that the attorney be admitted to that court as well.   So, for example, I am admitted to the U.S. District Court for the Southern District of New York, and also admitted to the U.S. Court of Appeals for the Second Circuit.   Right now these courts are in the same building.  One might be surprised how often attorneys overlook the admission requirements.

The Second Circuit Court of Appeals' listing of attorneys admitted to practice before it can be found here.

The Court's announcement that it will be removing attorneys who don't apply for readmission here.

The Second Circuit's Local Rule 46.1 on Attorney Admission here.

Announcement below:

The Court has transferred its roll of admitted attorneys to the CM/ECF database and has posted the roll to the website. The roll consists of attorneys who originally were admitted:
* before April 1, 2004 and renewed admission pursuant to LR 46.1(a);
* after April 1, 2004 regardless of whether an attorney renewed admission.

For informational purposes the Court will continue to post on the website the roll listing attorneys admitted between January 1, 1985 and December 31, 2010. This "Archived Roll of Admitted Attorneys" will assist, in particular, an attorney who wishes to track a pre-April 1, 2004 admission date but has not yet renewed admission. If an attorney admitted between April 1, 2004, and December 31, 2010, does not see his/her name in the CM/ECF database but does see his/her name on the Archived Roll, please contact Admissions at 212-857-8640.

Pursuant to LR 46.1(a), an attorney who was admitted prior to January 14, 2006, and has not renewed admission is now considered in inactive status. After 12 months in inactive status, an attorney will be removed from the admission roll. That attorney must then reapply for admission in accordance with the rule to file a notice of appearance in connection with a case before the Court. The Court will begin to record inactive attorneys as removed from the Archived Roll on July 1, 2011.

 More on the federal circuit courts of appeal here.


Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

How To File an Appeal: Useful Checklist for Filing Civil Appeals in the Second Circuit

I have attached a checklist for practitioners who must file appeals with the Second Circuit. The Local Rules have changed, and with the changes wrought by electronic filing, it's a whole new world. I will participate in a CLE program today at 5:30 p.m. starring Catherine O'Hagan Wolfe, Clerk of the Second Circuit sponsored by the Federal Bar Association and the Second Circuit Judicial Council, you can find the program here.   If I come across any new surprises tonight, I will post them.

Practitioner's Checklist for Filing Civil Appeals in the Second Circuit


 Purchase Copyright Litigation Handbook from West here