The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


No, it's not copyright infringement when attorney discipline authorities copy your blog …


… while investigating charges that some blog posts violated professional conduct rules. So held the unsurprising decision in Denison v. Larkin (N.D. Ill. Aug. 13, 2014) (just noted on a Westlaw case summary service, which is how I learned of it):

This case arises out of an Illinois Attorney Registration and Disciplinary Commission ("IARDC") disciplinary proceeding [which is still ongoing -EV]. Plaintiff [Joanne M. Denison], a licensed attorney in the state of Illinois, is suing the IARDC and Nextpoint for using portions of her copyrighted Blog as evidence against her in an attorney disciplinary proceeding. The IARDC has alleged that Plaintiff made false statements about judges and other lawyers on her Blog, which addresses the guardianship proceeding of Mary Sykes….

Mary Sykes was a 90-year-old woman who was put into guardianship in December of 2009. Plaintiff investigated Ms. Sykes' case and allegedly found "a large number of irregularities" in the case. Plaintiff believes that Ms. Sykes was a victim of courtroom corruption.

In late 2011, Plaintiff created the Blog to, in her words, "provide a forum for the friends and relatives of Mary Sykes, a probate victim, to speak out against corruption in the courtroom." … Plaintiff posted her own writings as well as the writings of others on the Blog. The writings included allegations of corruption in the Probate Court of Cook County, that Sykes was the victim of elder abuse, and that the guardians ad litem and the court had physically or mentally harmed Sykes….

Defendant Black [an IARDC lawyer] filed a disciplinary complaint [before the IARDC] on behalf of Defendant Larkin against Plaintiff alleging professional misconduct in making false statements on her Blog. The IARDC complaint alleged that Plaintiff wrote in her Blog that the judges, guardians ad litem, and other attorneys involved in the guardianship proceedings engaged in improprieties including theft and embezzlement from the estate of the Ms. Sykes. The IARDC alleged that these claims were false and brought an action against Plaintiff for:

a) making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, in violation of Rule 8.2 of the Illinois Rules of Professional Conduct;

b) conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct;

c) conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct;

d) presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g) of the Illinois Rules of Professional Conduct; and

e) conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

… Plaintiff brought this suit alleging that the IARDC infringed on her copyright by using "15 paragraphs of text from the Mary Sykes Blog" in its disciplinary complaint which the IARDC posted on its website. In addition, the ARDC copied "hundreds of pages from her blog" and maintained them in her case file. Plaintiff alleges the IARDC copied over 1,000 pages of the Blog and "then incorporated [it] into even further exhibits." Plaintiff claims the amount copied was "far in excess of what the IARDC needed for its investigation and trial." Moreover, Plaintiff alleges that she sent the IARDC a cease and desist letter and objected to its use of her copyrighted materials. The IARDC, according to Plaintiff, continued to copy and use portions of her blog for the disciplinary hearing, including for trial exhibits.

Additionally, Plaintiff alleges that Nextpoint, which produces webpage software data, also infringed on her copyright by allowing the IARDC to use Nextpoint's software to capture her Blog. Plaintiff claims that the copies exceeded the amount necessary for the IARDC proceeding. In Count I, Plaintiff alleges that the Defendants committed direct copyright infringement. In Counts II and III, Plaintiff alleges that Defendant Larkin committed contributory copyright infringement and vicarious copyright infringement.

Plaintiff seeks (1) statutory damages for willful infringement against each and all Defendants as jointly and severally liable; (2) a preliminary and permanent injunction against copying portions of Plaintiff's Blog; (3) an order that Defendants deliver up for destruction by the United States Marshal all exhibit pages not used at trial and that Defendants pay the cost of such destruction; (4) an order directing the IARDC to remove the 15 paragraphs of her Blog used to publish the January 8, 2013 complaint on the IARDC's website and to mark the omitted portions "copyrighted material omitted;" and (5) her reasonable attorney's fees, costs, and other relief under United States copyright law….

No go, says the district court, concluding—in my view, quite correctly—that the defendants' copying was fair use. For more, see the opinion and David Kluft's post on the Trademark & Copyright Law blog.