IP Law Daily, COPYRIGHT—S.D.N.Y.: Copyright lawsuit over attorney's unauthorized refiling of expert report survives dismissal, (Jul 27, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Whether refiling a copyrighted work on a federal court docket qualified as fair use and whether the claims were barred by the statute of limitations could not be decided on the pleadings.

A federal district court in New York has denied a motion to dismiss filed by a law firm and one of its attorneys accused of infringing the copyright in an expert report prepared for criminal defendants charged in connection with the January 6, 2021, attack on the U.S. Capitol. The court held that the complaint plausibly alleged copyright infringement by downloading and refiling the report in a separate criminal proceeding without authorization, and rejected the defendants' arguments that electronic filing through the federal courts' ECF system falls outside the Copyright Act or is categorically protected by fair use or constitutional principles. The court also held that factual disputes precluded dismissal based on the statute of limitations and actual damages (Olson v. Mcbride Law Firm, PLLC, No. 1:25-cv-08684-NRB (S.D.N.Y. Jul. 20, 2026)).

Background. The dispute arose between Lindsay Olson, a Texas-based litigation consultant and owner of Lux Research and Analytics, and McBride Law Firm, PLLC, together with attorney Joseph D. McBride, who represented a January 6 criminal defendant. Olson prepared a report titled Multi-District Comparative Community Attitude Study, analyzing potential jury bias in the District of Columbia against defendants charged in connection with the January 6 attack. She licensed the report to attorneys representing two Oath Keepers defendants for $30,000 for use in support of venue-transfer motions.

According to the complaint, the defendants later obtained a copy of the report without authorization and filed it in its entirety as an exhibit in support of a venue-transfer motion in a separate criminal prosecution involving another January 6 defendant. Olson registered the report with the U.S. Copyright Office in December 2022 and alleged that she discovered the unauthorized use only shortly before filing suit after locating a copy of the report bearing multiple electronic case stamps. The defendants moved to dismiss, arguing that filing documents through the federal courts' Electronic Case Filing system does not constitute actionable "use" under the Copyright Act; that any use was protected by fair use and constitutional principles; that the claims were untimely; and that statutory damages were unavailable.

Copyright use. The court first rejected the defendants' argument that uploading a document through ECF does not implicate any exclusive rights protected by the Copyright Act. The complaint alleged that the defendants downloaded Olson's report from one federal court docket and uploaded it to a different criminal case, thereby creating a new electronic copy that became publicly available through ECF and PACER. Accepting those allegations as true at the pleading stage, the court concluded that the complaint plausibly alleged reproduction, distribution, and public display of a copyrighted work.

The court found the defendants' reliance on Pearson Education, Inc. v. Ishayev, 963 F. Supp. 2d 239 (S.D.N.Y. 2013) misplaced. That decision distinguished merely forwarding hyperlinks from uploading copyrighted material itself and therefore did not support the proposition that refiling a copyrighted work on a public court docket falls outside the Copyright Act. The court also observed that the defendants cited no authority recognizing a categorical exemption for documents filed in judicial proceedings.

Fair use. Similarly, the court declined to resolve the defendants' fair-use defense on a motion to dismiss. It emphasized that fair use presents a mixed question of law and fact that can rarely be decided solely from the pleadings.

Applying the statutory factors, the court concluded that each involved factual disputes. Olson alleged that the report had been created specifically to persuade courts to transfer venue in January 6 criminal prosecutions and that the defendants used it for exactly that purpose in another case, undermining their claim that the use was transformative. The complaint also alleged that the defendants, as for-profit attorneys, avoided paying the customary $30,000 licensing fee, raising factual issues regarding commercial use. The court found persuasive a similar decision by Chief Judge Cecilia M. Altonaga of the Southern District of Florida refusing to dismiss an action involving the same report and materially similar allegations.

The remaining fair-use factors likewise could not be resolved on the pleadings. Olson alleged that the report reflected original selection, coordination, and arrangement of polling data rather than merely factual information. The defendants admittedly reproduced the report in its entirety, while Olson alleged they could have summarized or cited it instead. She also alleged a viable licensing market among attorneys representing January 6 defendants and claimed that the defendants' unauthorized use displaced a paid license. Rejecting the defendants' argument that publication on one federal docket extinguished any licensing market, the court observed that adopting such a rule would effectively eliminate copyright protection for any creative work filed in court.

Constitutional defenses. The court also rejected the defendants' First Amendment and due process arguments. While acknowledging the public's qualified right to inspect judicial records under Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the court recognized only a right of access, not a right to reproduce and redistribute copyrighted works without authorization. Olson did not challenge public access to the report already filed in court; rather, she sought relief for the defendants' alleged wholesale copying and refiling of the report in separate litigation. The court also found no authority recognizing a constitutional "litigation necessity" exception permitting attorneys to appropriate copyrighted material without compensation. It found Olson v. Law Offices of Kira Anne W., 2026 WL 1459791 (D.D.C. May 25, 2026) persuasive in rejecting materially identical constitutional arguments.

Limitations and damages. The court further held that dismissal on statute-of-limitations grounds was inappropriate. Under the Second Circuit's discovery rule, copyright claims accrue when the copyright owner discovers or reasonably should have discovered the infringement. Olson alleged that identifying the unauthorized filing required searching hundreds of January 6 criminal dockets because PACER lacks full-text search functionality and the filings did not identify her by name. Whether she exercised reasonable diligence presented factual questions unsuitable for resolution on the pleadings.

Finally, although the court agreed that Olson could not recover statutory damages because the copyright registration postdated the alleged infringement under 17 U.S.C. § 412, it held that the complaint adequately pleaded actual damages by alleging that the fair market value of the defendants' use equaled the $30,000 licensing fee previously paid for substantially the same use, together with disgorgement of any profits attributable to the alleged infringement. The court also denied Olson's request for sanctions, finding that although the defendants' legal arguments ultimately failed, they were not frivolous or advanced in bad faith. Accordingly, the motion to dismiss was denied in its entirety.

The Case is No. 1:25-cv-08684-NRB.

Judge: Buchwald, N.

Attorneys: James Henry Bartolomei, III (James H. Bartolomei, III PA) for Lindsay Olson. Ronald David Coleman (Coleman Law Firm, PC) for McBride Law Firm, PLLC.

Companies: McBride Law Firm, PLLC

Cases: Copyright NewYorkNews GCNNews