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 An author claimed that his essays were unpublished and that his adversary filing them in their entirety in a judicial proceeding was copyright infringement.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From the New York City Bar, full 1998 report criticizing a prior rule barring even citations to unpublished opinions that led to the currrent rule which permits parties to at least cite Summary Orders here: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 The pervasive use of summary orders has created a vast body of unpublished decisions which are often pertinent to issues arising before the Court, but which cannot be brought to the Court's attention under the current rule.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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Judiciary Announces Assessment and Improvements to PACER Electronic Case Access Portal

The Federal Judiciary has released an assessment of the PACER service, find it here.

Although the video touts the availability of Digital Audio files, according to PACER's website, only a few courts have made the service available, and the recording is only available if the presiding judge decides to post it on PACER.

From http://www.pacer.gov/:

Digital Audio Recording Project



Digital audio recordings are now available to the public via internet access to the PACER system. In March 2010, the Judicial Conference approved the plan to make digital audio recordings available on PACER after a two-year pilot project showed significant public interest in accessing these files. Prior to the pilot, access was only possible by obtaining a CD recording from a court clerks office for $26. The new digital files cost $2.40.


The presiding judge determines if the audio recording will be posted on PACER. Digital audio recording is used in most bankruptcy and many district courts (where magistrate judges account for most of the usage).


The following seven courts provide access to audio files through the PACER system: the U.S. District Courts in Nebraska and the Eastern District of Pennsylvania; the U.S. Bankruptcy Courts in the Eastern District of North Carolina, Northern District of Alabama, Southern District of New York, Rhode Island and Maine.

Having more courts participate and making it an "opt-out" system would make PACER truly revolutionary in digital audio recordings and be a tremendous money-saver.

From the assessment, it looks like a number of good new changes are coming to PACER.  It is amazing to see that PACER grew to over a million accounts by the end of 2009.




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