Evan Brown reports (links added):
The parties in the matter of Shell v. Devries, a case from the U.S. District Court for the District of Colorado, are no strangers to litigation with one another. In a previous civil rights lawsuit filed by plaintiff Shell, the defendants filed a motion for attorney’s fees, attaching thereto a copy of ten pages of Shell’s copyrighted website, profane-justice.org.Shell filed a second lawsuit against the same defendants, this time claiming that the use of the pages as an exhibit to the filing in the previous case was an infringement of copyright. The defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), asserting a fair use defense. The court granted the motion.
Evan walks through the court’s careful fair use analysis. The District Court did note that there is no per se rule that court filings cannot be copyright infringements. This one, however, wasn’t even close — so few fair use analyses would be, if courts would bother with them. Here the District of Colorado had to. Query whether an analysis of relief under Fed. R. Civ. P. 11 is in the offing next.
UDPDATE: From law firm Loeb & Loeb:
On review, the Tenth Circuit declined to follow the Ninth Circuit and rule that use of copyrighted material in a judicial proceeding is per se fair use and instead applied the four fair use factors set forth in the Copyright Act. After examining the record, the district court’s analysis, and the plaintiff’s arguments, the court concluded that defendants’ reproduction of the pages from the plaintiff’s web site constituted fair use.
They link to the opinion here.