Is Forwarding A Single Sentence Email From A Mailing List Infringement?
from the thankfully,-no dept
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....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:
[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....
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
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I'm sure that Mr. Stern will win on appeal!
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lesson learned
from this lawyer will be sent
in haiku format.
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I blame the new education system.
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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This is my favorite part
I know this is a copyright case, but I wish software patent examiners thought this way, too.
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Re:
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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I have good news and bad news
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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Re: I blame the new education system.
Presumably his offence was infringing copyright in the word "kick me"?
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Re: lesson learned
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Berne Convention
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Re: I blame the new education system.
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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Re: Re:
Oh Snap,
We really need an edit button.
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Re: Re: lesson learned
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Re: I have good news and bad news
> decide what's creative?
The trier of fact. In other words, the judge and/or jury.
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Re: I have good news and bad news
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Re: lesson learned
cash flow will cool his hot head
he can buy a hat
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Re: Re: I have good news and bad news
Google "drinking and writing" and you'll find quite a bit on the matter.
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Forwarding Email as copyright infringement
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