Copying the Copyright Infringement Complaint: A Sidebar in the YouTube Litigation

By Pete Salsich III

The tri-frontal attack on YouTube's business model spawned an interesting (probably to lawyers only) side skirmish the other day when a second class action complaint was filed by mandolin player and former Grateful Dead jammer David Grisman.  Grisman, along with his company Dawg Music and his partner Craig Miller, seek to represent a class of other musicians and copyright owners whose works are posted on YouTube without permission or compensation.  This filing falls on the heels of the class action complaint filed earlier this month by the English Premier League charging YouTube with massive copyright infringement.

The allegations in the two complaints are largely the same.  In fact, for the most part they are EXACTLY the same.  And that raises the question, asked by the Wall Street Journal Law Blog, whether wholesale copying of a filed complaint--alleging copyright infringement, no less--is itself copyright infringement.  Copies of both complaints are posted there.

This may be a bit of "inside baseball" to non-lawyers, but the blog post, and in particular the extensive comments thread, expose a heated debate that goes beyond the copyright question and touches on significant questions of legal ethics.  For example, many lawyers use form books or keep form files of different pleadings that they can lift from when preparing a new filing.  This can be very useful and efficient both for the lawyer and the client, and is probably not very controversial when you're talking about a simple appearance form or routine discovery requests.  However, what about a 40-page complaint?  Even if it contains similar factual allegations and legal theories, don't the lawyer's ethical obligations -- to investigate all the facts he or she alleges, for example -- require some modicum of originality?  And what about the bill the lawyer sends to the client? Is it OK to do wholesale copying if you only charge your client for the time it takes you to change the caption and the signature block? 

As to the copyright question, I tend to agree with Keith Henning at the copywrite blog.  He references an article by Professor Davida H. Isaacs applying a fair use analysis to the copyright question (see Davida H. Isaacs, The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L. Rev. 391 (2006)) as well as Professor Nimmer, but ultimately concludes that the allegations of fact in a complaint typically do not contain the level of originality required for copyright protection.  I don't think wholesale copying of this type is a good (or ethical) practice, but I'm not sure that it is copyright infringement.

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