A gem of a legal opinion spanking a lawyer for a frivolous copyright claim

http://cdn.volokh.com/wp/wp-content/uploads/2011/03/sternvdoes.pdf

by grellas • 15 years ago

32 20 15 years ago

cdn.volokh.com

grellas• 15 years ago

This is for law buffs (30-page decision).

It concerns an attorney who had hired a forensic firm to support his litigation matter and who felt they had overbilled and/or churned the matter. He asked a one-sentence question on a listserv forum about whether anyone else had had a bad experience with the firm. One person forwarded the question to his spouse and the spouse forwarded it to the firm whose services were being questioned. The lawyer then went to the U.S. Copyright Office and, believe it or not, registered his one-sentence inquiry as a copyright and then sued the parties who had forwarded it for infringement!

For those interested (and I realize this is not a matter of general interest):

1. The case documents the absurd lengths to which some people, and especially a certain type of lawyer, will go to bully and intimidate through litigation.

2. The opinion itself is beautifully analyzed and written and contains a very informative discussion of what sort of short phrase is or is not copyrightable and of what the standards are for fair use (it is legal technical stuff but quite understandable).

3. The judge has some priceless jabs in the decision, e.g., footnote 7, where she considered the lawyer's point whether a one-sentence line from Shakespeare ("to be or not to be", from Hamlet) might have been copyrightable and retorted that the better inquiry here might have been about Much Ado About Nothing.

The patient will be well rewarded in reading through this one (you can skip or skim past parts that are not of general interest, e.g., the legal standard for summary judgment).

Bottom line: after 2 years of very expensive litigation, the offending lawyer is about to get socked with a massive attorney fee award that the judge already decided he will pay "for pursuing such folderol," leaving only the amount to be determined.

flipbrad2• 15 years ago

The fool paid $750 to register (an invalid) copyright in a listserv one-liner! Amazing, even if you don't consider the hundreds of thousands of dollars expended on this lawsuit ($70,000 claimed by the defendants, and I assume he'd claim something similar in costs if he was entitled to them).

First time I've seen judgements with a heading that is subtitled - in chinese - with a Sun Tzu quotation! It's at p5, and says (according to the translating footnote): “He will win who knows when to fight and when not to fight.” Sun Tzu, The Art of War 32-33 (Lionel Giles trans., Ulysses Press 2007)

Even more wonderful is the complaint - from a lawyer! - that the alleged copyright infringement caused medical harm: "[i]n having to deal with the violation of my copyright, I have experienced aggravation of the then arthritis in my right hip, which resulted in excess pain in the hip and leg and a decrease in the range of motion in my leg and hip."

ctdonath• 15 years ago

To the medical claim, the judge retorts with the quote "...which really boils down to ‘hurt feelings’". Heh.

The Chinese quotation was startling. Having read the judgement, methinks I'm allowed to copy it.

Overall the entire opinion impresses me both with the comprehensive wit and precision applied to eviscerate the claim, and with the sobering observation that current judicial practice calls for a 30-page comprehensive opinion required to reach the conclusion when "you idiot, get out of my courtroom" should have been sufficient.

anigbrowl2• 15 years ago

The patient are well rewarded indeed, with asides such as note 12: 12 “Plaintiff beliefs [sic], when [White Zuckerman’s employee] used the word slander,considering the context of the comment, she really meant liable [sic]. Confusing liable [sic] with slander is a mistake people commonly make.” (2nd Am. Compl. ถ 56.) Confusing “libel” with “liable” is also a commonly-made mistake.

JoeAltmaier• 15 years ago

And this about the Plaintiff trick of a copyright app for the 1-line email: "As discussed above, Plaintiff is incorrect about the validity of his copyright because his listserv post lacks originality. Nonetheless, Plaintiff’s originality argument was not objectively unreasonable. The problem with Plaintiff’s copyright claim lies in Defendants’ obvious fair-use defense. A reasonable person, particularly one who happens to be an attorney, would not have pursued such folderol. Plaintiff’s decision to proceed with this patently meritless cause of action supports a fee award."

scott_s• 15 years ago

I was tickled by,

The Court reproduces the whole of Plaintiff’s e-mail so that the ensuing discussion of originality and fair use is not hopelessly abstract. The Court’s “unauthorized reproduction” of Plaintiff’s copyrighted work is, as Judge Posner has succinctly put it, “a good example of the fair-use doctrine in action.”

And it's not this judge's words, but this judge had the good humor to cite this,

See Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002)(holding that a plaintiff’s subjective view about the harm from copyright infringement,“which really boils down to ‘hurt feelings’ over the nature of the infringement, has no place in [the damages] calculus”)

fourply• 15 years ago

Good stuff. Now if we could only get some similar opinions in Righthaven copyright troll cases, we'd be making some progress!

Davey• 15 years ago

I like the snide remarks from Public Citizen when they are pursuing CDA stuff. http://pubcit.typepad.com/clpblog/2011/02/javelin-marketing-...

I love how he says in his letter "even assuming that your letter is sufficiently original to be copyrightable, and that you register the copyright, the posting of your letter will be fair use and hence not actionable"

Andrew_Quentin• 15 years ago

This is proof, if any was needed, that judges and the law is often quite reasonable.

michaeldhopkins• 15 years ago

I don't know whether proof is needed, but this isn't proof that any judges are reasonable. This is just one ruling from one judge. It could be his first reasonable ruling.

Qz• 15 years ago

The judge is a she.

shasta• 15 years ago

What?? This patently frivolous litigation went on for TWO YEARS and cost over a HUNDRED THOUSAND DOLLARS and you think this is proof that the legal system is reasonable?

epoxyhockey• 15 years ago

D. 1. c. ii.: Plaintiff’s Delay In Turning Over His Listserv Post

This case easily could have been resolved on a motion to dismiss had Plaintiff disclosed the content of his listserv post at the outset. By withholding disclosure of this information until August 2010 (see RW Mot., Farrell Decl. 2), Plaintiff substantially prolonged this litigation.

geebee• 15 years ago

It all depends on what you mean by "the law".

If you simply look at the law as a legal ruling, it often (though not always) seems reasonable. However, if you look at "the law" as the process of getting to that ruling, it often seems horrendously unreasonable.

To me, the great failures of the legal system usually aren't the decisions it hands down, it's the way the brutally expensive and lengthy process itself can be used to gain leverage and/or coerce other people.

tzs• 15 years ago

When reading this, be aware it is a ruling on a motion by the defendant for a summary judgement. Informally, the defendant is essentially saying "even if every fact the plaintiff claims is true, he has no case".

That's why the court says this: "In setting forth the facts underlying this dispute, the Court draws exclusively from Plaintiff’s version of events, resolving all disputed facts in Plaintiff’s favor and assuming without deciding that Defendants’ evidentiary objections are to be overruled". If one misses that it is a summary judgement motion, it might look like the court is unfairly favoring plaintiff.

Edit: also note that the $750 fee the plaintiff paid to register his copyright is not normal. Copyright registration is normally $35 dollars. That's what you would pay as a US author, registering your work before publication so that you can recover damages from US infringers. (Foreign authors do not have to register to recover damages from US infringers in US courts, which is why this registration requirement does not violate US obligations under the Berne Convention).

The only $750 registration I see on the copyright office's fee schedule is for registration with expedited processing. That generally means plaintiff fucked up. :-)

jcnnghm• 15 years ago

This is my favorite part, and could be significant in the future as a citation supporting a broad fair use of published online comments, regardless of ToS.

Each of the four factors either support Defendants’ fair use defense or are neutral. This is unsurprising. In an age of blogs, listservs, and other online fora, a person’s short comment in cyberspace is frequently quoted in its entirety as others reply or forward it elsewhere. It would be strange, dangerous even, if every such quotation subjected the copier to liability and a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to kill a mosquito; they carry the same attendant risk of collateral damage by chilling free speech. A free and vibrant democracy depends upon the unfettered exchange of ideas.

A gem of a legal opinion spanking a lawyer for a frivolous copyright claim

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