BigLaw firm’s motion was copied ‘nearly verbatim,’ boutique firm alleges in copyright lawsuit

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BigLaw agency’s movement was copied ‘almost verbatim,’ boutique agency alleges in copyright lawsuit

By Debra Cassens Weiss

January 2, 2024, 12:15 pm CST

Up to date: A boutique legislation agency alleges that Winston & Strawn infringed its copyright by submitting a movement to dismiss that has a “putting resemblance” to the boutique agency’s movement.

Winston & Strawn copied the movement “almost verbatim,” the Hsuanyeh Regulation Group, a Boston agency, claims in its Dec. 26 lawsuit.

“Defendants didn’t even rewrite their very own introduction,” in accordance with the go well with, filed within the U.S. District Courtroom for the Southern District of New York.

Publications with protection embrace Above the Regulation, which famous a social media submit concerning the case by promoting lawyer Rob Freund, and the Interior Metropolis Press.

The Rule 12 movement filed by the Hsuanyeh Regulation Group on Aug. 23 sought to dismiss patent infringement claims by Unification Applied sciences. Winston & Strawn, which represents a co-defendant, filed its Rule 12 movement the subsequent day. The Hsuanyeh Regulation Group obtained a copyright for the movement Aug. 30.

The Hsuanyeh Regulation Group seeks precise and statutory damages, noting that the utmost statutory injury for copyright infringement is $150,000.

The go well with features a copy of a Dec. 15 letter signed by Brant C. Weidner, Winston & Strawn’s assistant normal counsel.

Weidner mentioned the threatened copyright declare “suffers from quite a few substantive infirmities,” however he needed to concentrate on the declare for statutory damages of as much as $150,000.

As a result of the Hsuanyeh Regulation Group obtained the copyright after the alleged copying, the Hsuanyeh Regulation Group can solely get better if the movement was “printed” earlier than registration, Weidner wrote. However submitting a doc in federal court docket by way of PACER doesn’t represent publication throughout the that means of the copyright act, Weidner mentioned.

A publication requires business benefit, which doesn’t occur with a PACER submitting, Weidner mentioned. At finest, the submitting constituted a “public show” of the movement, he mentioned. And even when statutory damages have been accessible, essentially the most that could possibly be recovered can be $30,000 for nonwillful infringement, Weidner asserted.

“You won’t be able to indicate willfulness on this matter,” Weidner wrote. “Certainly, no case has ever held {that a} legislation agency’s copying of a co-defendant’s movement constitutes infringement.”

Instances cited by the Hsuanyeh Regulation Group concerned Westlaw’s use of publicly filed briefs, held to be honest use, and copying from a draft temporary that hadn’t been filed, in accordance with Above the Regulation.

A Winston & Strawn spokesperson declined to remark.

Up to date Jan. 3 at 1:14 p.m. to mirror {that a} Winston & Strawn spokesperson declined to remark to the ABA Journal.