Court Smacks Down Lawyer Who Tries to Enforce Copyright in 23 Word Email — Stern v. Does

[Post by Venkat Balasubramani]

Stern v. Does, 09-cv-01986 (C.D. Cal.; Feb. 10, 2011)

Professor Goldman mentioned this case in his quick links roundup, but I think it’s worth a standalone post. A lawyer sends an 23 word email to a listserv and then tries to being an infringement claim against someone who forwarded the email. Not surprisingly, the court smacks down the plaintiff.

Plaintiff is a lawyer who had concerns about whether an accounting firm he used was overbilling. He sent an email to the listserv operated by the Consumer Attorney’s Association of Los Angeles:

Has anyone had a problem with White, Zuckerman . . . cpas including their economist employee Venita McMorris over billing or trying to churn the file?

One of the defendants who was a member of the listserv accessed the post and forwarded the email to his sister. His sister was a client of White Zuckerman and forwarded the email to White Zuckerman. In response (after some delay), plaintiff brought suit for copyright infringement.

[After dropping a footnote to Sun Tzu (“he will win who knows when to fight and when not to fight”), the court delves in to the discussion.]

The Listserv Confidentiality Agreement: Plaintiff relied in part on the listserv terms of use in arguing infringement – i.e., recipients had a license to access and use the material posted on the listserv in accordance with the listserv terms, and forwarding the email in breach of a member’s confidentiality obligation was a breach of the terms of the license.

The court finds that the listserv terms concern confidentiality, and not work product or ownership. In any event, the court rules that plaintiff is not an intended beneficiary of the listserv agreement (which is enforceable by CAALA’s Executive Director, Executive Committee Members and/or Board of Governors).

The Listserv Post Lacks Sufficient Creativity: The court finds that plaintiff’s sentence (or phrase) lacks sufficient creativity to be copyrightable. Although there is no bar to copyrighting a short sentence (Jabberwocky, also a 23 word work, was easily copyrightable), the “smaller the effort . . . the greater must be the degree of creativity in order to claim copyright protection.” The court finds that plaintiff’s post “displays no creativity whatsoever.” Plaintiff tried to come up with variations on how he could have expressed the same idea, but the court says that plaintiff’s proposed “trivial” alterations to his post does not mean that it is sufficiently creative. The court also pokes holes in plaintiff’s alternate formulations, showing that the alternatives mean slightly different things.

Fair Use: Even assuming plaintiff’s post was entitled to copyright protection, the court runs through the fair use analysis and finds that defendants’ use of the post constituted fair use:

The copying of Plaintiff’s entire sentence was also reasonable in light of the purpose for which it was reproduced—to alert White Zuckerman about Plaintiff’s potentially libelous statement.

Plaintiff tried to argue that White Zuckerman made use of plaintiff’s writing “claiming that plaintiff had . . . ‘slandered’ [White Zuckerman, and threatened to sue plaintiff],” but the court found that use of copyrighted material in litigation or pre-litigation can constitute fair use. (In a footnote, the court smacks plaintiff with its grammar stick for confusing “libel” with “liable.” Unbelievably, plaintiff took issue with White Zuckerman’s use of the word “slander,” arguing that White Zuckerman intended to say “liable” rather than “slander,” but in the process demonstrated plaintiff’s own confusion between “liable” and “libel”.)

Attorney’s Fees: Upon concluding that plaintiff’s claims lacked merit, the court goes on to find that defendants are entitled to attorneys’ fees. The court finds that not only did plaintiff bring “his copyright claim in bad faith,” his failure to disclose the post in question to defendants unreasonably delayed the litigation. (The court does find that defendants failed to submit a proper accounting (detailed billing records) for their fees and instructs them to submit something more detailed in any amended motion.)

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There’s a lot to be learned from this dispute.

First, people who are looking to sue for infringement based on a single Tweet or Facebook post should take note. It’s not going to be easy.

Second, the lawyer who is arguing that a single 23 word post of his was sufficiently creative should probably have a brief that’s crisply written and reasonably free of typographical errors. The tone of the judge’s order is: “sure, a 23 word post could be sufficiently creative to warrant copyright protection . . . if the person writing it had an ounce of creativity in their bones.” (A court will not argue with an artist over whether something he or she did was sufficiently creative. Are courts more likely to do this when it comes to written material?)

Third, copyright litigation is more than out of control. (See Righthaven.) Although plaintiffs can inflict some pain on defendants by subjecting them to litigation, courts seem pretty well equipped to sift through non-meritorious claims.

Other coverage:

Techdirt: “Is Forwarding A Single Sentence Email From A Mailing List Infringement?”

Volokh: “Forwarding a Sentence-Long Message from a Listserv = Copyright Infringement?”

Blog Law Blog: “Court in Cali Bounces Copyright Suit Over 26-Word Listserv Post”

43(B)log: “Today’s copyright zinger”