Is Forwarding A Single Sentence Email From A Mailing List Infringement?

from the thankfully,-no dept

Mon, Apr 4th 2011 11:30am — Mike Masnick

We've noted how copyright gets weird when you realize that everything that computers do is about making copies, and it can lead to some bizarre lawsuits. Eric Johnson points us to a writeup by Eugene Volokh of an attempt by a lawyer (of course) named Kenneth Stern, who argued that forwarding a single 23-word sentence that he had sent out to a listserv email list, constituted copyright infringement. As Johnson notes, the full sentence, at 150 characters, was just slightly larger than a Twitter message:

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

Now, the reason we can be comfortable reposting that, without fear of dealing with a copyright infringement lawsuit from Kenneth Stern is because the court shot down the lawsuit, noting both that the sentence was not covered by copyright, and even if it were, forwarding it to a mailing list would be fair use. Oh, and the court didn't just shoot it down. It said that Stern's lawsuit was frivolous... to the point of saying that he may need to pay attorney's fees for the people he sued.

Plaintiff asserts that he holds a valid copyright and that Defendants' acts -- copying and distributing his listserv post -- constituted both copyright infringement and contributory infringement....

[T]he copyrightability of a very short textual work -- be it word, phrase, sentence, or stanza -- depends on the presence of creativity. The opening sentence of a poem may contain sufficient creativity to warrant copyright protection whereas a more prosaic sentence of similar length may not. For instance, the opening stanza/sentence of the poem Jabberwocky contains, coincidentally, the same number of words -- 23 -- as Plaintiff's listserv post: " 'Twas brillig, and the slithy toves / Did gyre and gimble in the wabe; / All mimsy were the borogoves, / And the mome raths outgrabe." The utter creativity of this "greatest of all nonsense poems in English" prompted one court to suggest that even its first line would be entitled to copyright protection.

Plaintiff�s listserv post, in contrast, displays no creativity whatsoever -- its content is dictated solely by functional considerations. Plaintiff merely requested factual information: whether anyone on the listserv had a bad experience with a certain forensic accounting firm -- and one employee in particular -- regarding overbilling and the churning of client files. His single sentence conveys precisely this idea and no more. As Plaintiff's expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection....

Separately, the fair use argument strikes me as quite interesting in a few ways as well. For example, in discussing the four prongs, the court finds that the forwarding of the email (which was sent to the law firm that Stern was asking about) was "transformative." Now, we often hear from copyright defenders who claim that to be transformative, you have to totally change the work itself, but the court explains that's not the case:

Defendants' use of Plaintiff�s sentence is highly transformative. Plaintiff's listserv post sought specific information about a forensic accounting firm's questionable business tactics. Defendants did not seek any information at all; their purpose was to alert the company about Plaintiff's post. By forwarding the post in e-mails, they conveyed the fact of the post rather than its underlying message. Defendants' e-mails thus had a substantially different purpose than the post itself, a fact which weighs heavily in favor of fair use.

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Filed Under: copyright, email, forwarding

18 Comments

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Anonymous Coward, 4 Apr 2011 @ 11:50am

The judge is *clearly* legislating from the bench! If we don't grant copyright over sentences like this, how will people *ever* be incented to ask questions on mailing lists?

I'm sure that Mr. Stern will win on appeal!
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Anonymous Coward, 4 Apr 2011 @ 11:51am

lesson learned
all future emails
from this lawyer will be sent
in haiku format.
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The Buzz Saw (profile), 4 Apr 2011 @ 11:53am

I blame the new education system.
Seriously, were these people picked on in middle school? I cringe every time I see some superintendent/principal/etc. announce on TV some new provisions to harshly prosecute bullies. A kid got suspended recently for putting a "kick me" sign on another kid. I am certainly in favor of regulating VIOLENCE that goes on, but name-calling, mockery, and social antagonism is how we grow.

Whenever I hear about these lawsuits, I really do see some kid who was picked on in school who runs to the system every single time for aid. Man up. Own your actions. Explain your position. Don't go crying to mommy because someone threw a water balloon at you.

Sorry, that was only mildly related, but it's how I feel about these situations. We are cultivating a society full of entitlement, selfishness, and control.
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MrWilson, 4 Apr 2011 @ 11:59am

Art is communication, but not all communication is art.
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Anonymous Coward, 4 Apr 2011 @ 12:00pm

This is my favorite part
As Plaintiff's expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection.

I know this is a copyright case, but I wish software patent examiners thought this way, too.
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Qritiqal (profile), 4 Apr 2011 @ 12:00pm

Re:
"The judge is *clearly* legislating from the bench! If we don't grant copyright over sentences like this, how will people *ever* be incented to ask questions on mailing lists?"

And how will people ever legally reply to a comment on a blog, since doing so with the original comment in quotes is most likely copyright infringement?
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RobShaver, 4 Apr 2011 @ 12:09pm

I have good news and bad news
"It was the best of times.
It was the worst of times."
"Everybody was kung foo fighting.
It was a little bit frightening."

If the words must be creative to be copyrighted, who gets to decide what's creative? Must everything be litigated to decide?

If Jabberwocky is the "greatest of all nonsense" then how can it be deemed "creative". It contains few words from any language. Is the definition of creative like that of pornography; "I can't define it, but I know it when I see it"?

If this, indeed, proves to be the new legal "truth", then copyright is even more broken than I thought and we are all screwed even more than ever.
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Richard (profile), 4 Apr 2011 @ 1:00pm

Re: I blame the new education system.
A kid got suspended recently for putting a "kick me" sign on another kid.
Presumably his offence was infringing copyright in the word "kick me"?
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pixelpusher220 (profile), 4 Apr 2011 @ 1:06pm

Re: lesson learned
my thoughts exactly, do we want to encourage *lawyers* to get artistic in their writings?
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Anonymous Coward, 4 Apr 2011 @ 1:23pm

Berne Convention
This is why the U.S. should have never joined the Berne convention. If an author really finds that they need a copyright, they should explicitly state so to the work that is copyrighted and pay to register it. If jerks, like the plaintiff, feel that they need to mark everything they write as copyrighted, they should defend in a court why that particular work deserves copyright--was it written in the normal course of another activity or was the work specifically produced for commercial publication. Unfortunately the law indeed does not work that way because copyright laws teeter over in imbalance to favor publishers and are not balanced around reason. Having judges litigate works for copyright status based on artistic merit is insanity, since they are not even remotely artists but instead lawyers.
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vivaelamor (profile), 4 Apr 2011 @ 1:48pm

Re: I blame the new education system.
"A kid got suspended recently for putting a "kick me" sign on another kid. I am certainly in favor of regulating VIOLENCE that goes on, but name-calling, mockery, and social antagonism is how we grow."

Was the story really that simple? In my experience such supposedly absurd stories tend to leave out relevant details like a history of bullying or other contributing factors.

Also, name calling, mockery and social antagonism might be how you grew, but for many kids it's more the equivalent of being shat on, to continue the fertiliser metaphor.

"Whenever I hear about these lawsuits, I really do see some kid who was picked on in school who runs to the system every single time for aid. Man up."

Whenever I see someone using the phrase 'man up', I really do see some kid who was made to feel emasculated and has to compensate as an adult with sexist rhetoric.

"Don't go crying to mommy because someone threw a water balloon at you."

Yes, if they did that then they might miss their fertiliser. And water.

"We are cultivating a society full of entitlement, selfishness, and control."

By not allowing bullying yet being bullied? Damn those selfish kids' sense of entitlement.
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Atkray (profile), 4 Apr 2011 @ 2:04pm

Re: Re:
(Insert quote of second sentence above here)

Oh Snap,

We really need an edit button.
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Dementia (profile), 4 Apr 2011 @ 5:53pm

Re: Re: lesson learned
You mean they aren't already? Legalese has to be one of the most creative languages I've ever had the displeasure of trying to understand.
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btr1701 (profile), 4 Apr 2011 @ 5:57pm

Re: I have good news and bad news
> If the words must be creative to be copyrighted, who gets to
> decide what's creative?

The trier of fact. In other words, the judge and/or jury.
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VMax, 4 Apr 2011 @ 8:39pm

Re: I have good news and bad news
Great nonsense is "creative"? Man, I must be terribly creative when I've had a few. I'll get a lawyer to listen to me next time I go on a bender and then sue, sue, sue.
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RadialSkid (profile), 5 Apr 2011 @ 8:52am

Re: lesson learned
creativity
cash flow will cool his hot head
he can buy a hat
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MrWilson, 5 Apr 2011 @ 12:13pm

Re: Re: I have good news and bad news
Quite a few writers are famous for works they composed while under the influence of various substances.

Google "drinking and writing" and you'll find quite a bit on the matter.
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Peter S. Chamberlain (profile), 9 Apr 2011 @ 9:07pm

Forwarding Email as copyright infringement
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