Office Depot Looking At Millions In Attorney’s Fees After Winning Bullshit Copyright Suit
I'm certainly not the first person to make this point, but the only thing that's really going to prevent truly bullshit copyright infringement lawsuits from being filed in the first place is when bad actors get hit in the pocketbook. One of the most common ways that actually occurs is through courts ordering plaintiffs in these silly cases to pay attorney's fees.
That appears to be what might happen with respect to a copyright suit that Office Depot defeated recently. The company was sued by another company, Infogroup. At issue was how Office Depot used Infogroup's product, which was a dataset that could be manipulated for marketing and research purposes. Office Depot licensed the product, but when it allowed its real estate division to use it to map out targets for store locations, Infogroup claimed that doing so violated its copyright and the contract they had between the parties. You can read the ruling granting Office Depot's motion to dismiss below for further detail, but the claim was silly given the plain language within the contract itself.
Upon review, the Court agrees that Defendant's reading of the Licensing Agreement comports with the ordinary meaning of the language in the Agreement, which does not restrict Defendant's use of the Licensed Data as Plaintiff suggests. As quoted above, Section E grants Defendant a limited, non-exclusive . . . license to use the Licensed Data for its own direct marketing and internal research and analytics (DM License')" [ECF No. 169 p. 2]. Contrary to Plaintiff's suggestion [ECF No. 213 p. 11], this language contains no limit on which subsidiary division/department within Office Depot may use the license, and indeed the parties to the Agreement are Office Depot, Inc. and Infogroup, Inc.-not particular departments [ECF No. 169 p. 1]. Nor does Section E restrict the term direct marketing and internal research and analytics" to direct marketing only." Although Section E contains a reference to DM License" in parenthesis after the pertinent language, that parenthetical cannot fairly be read to limit the terms of the license granted, which clearly encompasses direct marketing and internal research and analytics," without further restriction.
That's about as cut and dry as these sort of things get. Office Depot licensed the product and used it in a way that any plain reading of the contract would allow for. It's not Office Depot's fault that whoever wrote Infogroup's contract did so without the precision intended by the company.
So, as a result, the case was dismissed, but not after a year or so worth of motions, hearings, and discovery. Office Depot racked up $2 million in fees with its legal team during that time and it would very much like that money it was forced to spend back, please.
Office DepottoldCannon on Monday that its lawyers, including Husch Blackwell in addition to DLA Piper and Hogan Lovells, are entitled to more than $2 million in attorney fees and costs under the Copyright Act, which permits prevailing parties" to recoup fees from the losing side.
Damon Lewis, a Hogan Lovells partner who served as Office Depot's lead counsel in this case, said in Monday's filing that the $2 million request is reasonable and justified.
Infogroup's copyright claim was frivolous and objectively unreasonable, and an award of fees will further the goals of the Copyright Act by deterring plaintiffs like Infogroup from pursuing such unreasonable claims," the fee petition said.
Infogroup is going to oppose the motion for fees, according to its attorney, because of course it is. But it's hard to imagine Office Depot not getting fees awarded, given the nature of the case and its outcome.
Play stupid games, win stupid prizes, as the saying goes.