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Second Circuit Holds that Submission of Entire Copyrighted Work in Judicial Proceedings Constitutes Fair Use

By Kaethin Prizer – Edited by Esther Kang
Hollander v. Steinberg, No. 10-1140-cv (2d Cir. Apr. 5, 2011)
Summary Order hosted by Scribd.com

The Second Circuit affirmed the decision of the District Court for the Eastern District of New York, which had granted summary judgment in favor of the defendant in a copyright infringement suit.

The Second Circuit applied the traditional four-factor fair use test, 17 U.S.C. § 107, to filings in judicial proceedings. The court held that the grant of summary judgment for non-infringement was appropriate, because the filing of an author’s essays in their entirety in judicial proceedings constituted fair use.

The Copyright Litigation Blog provides an overview of the case. 

The plaintiff, Hollander, alleged that Steinberg infringed his copyright by submitting his essays during court proceedings, thereby publishing them in the record. Hollander claimed that the essays were unpublished, although he had previously posted the essays on his website and later removed them. In holding as it did, the court reasoned that the “purpose and character” of defendant’s use of the essays was not commercial but instead was a part of Steinberg’s litigation strategy. The court further stated that publishing a copyrighted work in court documents would not usurp its potential market, both because potential readers would likely be unaware of the documents, and because acquiring the work from the court’s PACER system is cumbersome. Moreover, because litigants regularly reproduce documents in full in judicial proceedings, the court stated that the defendant’s use of the work in its entirety appeared reasonable. The court chose not to decide whether Hollander “published” his essays by temporarily posting them to his website.

The precedential value of this decision is unclear. The ruling is a “Summary Order,” which according to the court has no precedential effect. However, citing to a Summary Order is permitted under Federal Rule of Appellate Procedure 32.1. According to the Copyright Litigation Blog, Hollander is “a fair use decision that the Second Circuit has decided should be ignored.”

Kaethin Prizer is a 1L at Harvard Law School.

Posted On Apr - 15 - 2011 Comments Off

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