No Reason To Jump Ahead

The United States District Court for the District of Columbia (Chief Judge Boasberg) denied a motion to dismiss an action brought against Proud Boy lawyers

In Lux Research and its owner, Lindsay Olson, brought this case against the lawyers and law firms that represented a number of Proud Boys in a joint criminal trial stemming from the insurrection at the U.S. Capitol on January 6, 2021. Plaintiffs claimed that one of the defense lawyers, John Daniel Hull, allegedly acting on behalf of the others, hired In Lux to conduct a jury poll for a $30,000 fee but failed to pay up. Most Defendants — including Nayib Hassan, Sabino Jauregui, and their law firms — responded to the suit with motions to dismiss. The Court granted those motions in a Memorandum Opinion and separate Order issued five months ago.

Two months later, however, Plaintiffs successfully moved this Court to partially vacate its dismissal Order and allow them to amend their Complaint to pull the Hassan and Jauregui Defendants back into the case. The operative pleading now alleges that this set of Defendants used, without copyright authorization, an April 2022 report — prepared by In Lux for separate January 6 defendants in preparation for a separate criminal trial — in support of their effort to transfer their clients’ case out of the District of Columbia.

As before, the Hassan and Jauregui Defendants now move to dismiss, contending that their reliance on the April 2022 report was both fair use and otherwise protected by 17 U.S.C. § 109(a). Because the former issue is ordinarily not resolved until summary judgment — and Defendants’shoddy briefing has given the Court no reason to jump ahead — and the latter contention has little merit, the Court will deny the Motion.

Fair use

Here, Defendants have provided no reason for thinking that this is the exceptional case where fair use should be decided before discovery. To the extent that they even acknowledge this potential roadblock, they puzzlingly cite a single case that states that it is proper to decide fair use “at the summary judgment stage if the historical facts are undisputed and the only question is the proper legal conclusion to be drawn from those facts.” MTD at 8 (quoting L.A. Times v. Free Republic, 2000 WL 565200, at *4 (C.D. Cal. Apr. 4, 2000)) (emphasis added). Needless to say, simply quoting an unhelpful standard does not show why the Court should undertake this fact-intensive inquiry in the absence of a record.

Even if this standard extended to motions to dismiss, moreover, Defendants have not shown why the fair-use defense would succeed on the current record. For one, some of the key facts here are, contra Defendants, in fact disputed.

First-Sale Doctrine

Defendants’ submission once again leaves much to be desired. They re-up their strategy of bombarding the Court with citations that may or may not bear on the issue at hand on their way to concluding that Plaintiffs’ initial sale of the April 2022 report “exhausted” their right “to sell the report again.” See MTD at 13–14. Yet they are silent on why this initial sale would also exhaust Plaintiffs’ exclusive right to reproduce the same report. See Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785, 794 (5th Cir. 2017) (despite first-sale doctrine, which limits copyright owner’s general right to distribute, “[t]he owner of a lawfully made copy . . . is still forbidden from copying it . . . or publicly displaying it”). They are silent, too, on how the doctrine could protect their reproduction of the report, given that they neither commissioned nor paid for the initial copy of the report (or any copy, for that matter) and are therefore not its owners. See 17 U.S.C. § 109(d) (first-sale doctrine does not shield a “person who has acquired possession of the copy . . . without acquiring ownership of it”); Quality King Distribs., Inc. v. L’anza Rsch. Int’l, Inc., 523 U.S. 135, 146–47 (1998) (noting that first-sale doctrine does not provide defense to action “against any nonowner such as a bailee, a licensee, a consignee, or one whose possession of the copy was unlawful”).

In short, Defendants have not come close to carrying their burden of proving that their use of Plaintiffs’ April 2022 report was protected by the first-sale doctrine. The Court will accordingly reject this challenge, as it did the first.

(Mike Frisch)