City Tries To Silence YouTube Critic By Suing For Copyright Infringement

from the taxpayer-money-at-work dept

Wed, Jun 3rd 2015 9:33am — Adam Steinbaugh

This is a pretty stunning example of censorship by copyright -- from a literal government.

Joseph Teixeira is a critic of the mayor of Inglewood, California, James Butts. As is common among people with more than a passing interest in local politics, Teixeira takes clips of videos of city council meetings -- which are available on YouTube -- and posts them to YouTube, overlaying them with his own commentary and words. Teixeira, who goes by the name "Dehol Trouth" (get it?), runs a website called "Anybody But James Butts For Anything" and, when he's not caustically criticizing Mayor Butts, likes to make fun of the way he plays with his tie. Here's one of the videos:

Whether Teixeira's criticism has any merit, I don't know. He comes across as articulate and well-researched, lacking an "I attend every city council meeting to rant about chemtrails" feel. I do know this: it's awfully hard for a public official to sue for defamation.

But of course Mayor Butts isn't afraid of a few YouTube videos viewed by a couple hundred people -- people who probably don't even live in Inglewood and were just searching for a Snoop Dogg video. After all, Mayor Butts, won his last election by the largest margin in the city's history. So the best thing to do would be to ignore the guy, right?

Of course it would. But that's not what Mayor Butts and his fellow councilcritters did. Rather, they enlisted the resources of the city they govern to sue Teixeira for copyright infringement. Here's the complaint. In its path to censoring Teixeira, the City of Inglewood makes some pretty surprising false statements, on top of being completely and utterly wrong on the law.

Teixeira moved to dismiss the lawsuit with two arguments. First, he argues that the city can't even own a copyright because California law -- which requires the city to provide a copy of the video at only the cost of reproducing it to anyone who asks -- doesn't permit a city to hold a copyright in this kind of record. And that's what this is: a record of a city council meeting. Second, Teixeira argues that if there is a copyright interest, this is a classic fair use. After all, he's a citizen making fifteen-minute videos that include snippets of meetings that last up to four hours, and doing so to criticize his elected officials. On top of that, he's not getting any money for it. It's hard to think of a clearer example of fair use.

The City of Inglewood, represented by a seasoned IP litigation attorney who should really know better, responded with one of the most transparently-wrong briefings I've ever encountered -- and I read pro se ramblings as a hobby.

First, Inglewood argues that it can have a copyright interest because that case cited by Teixeira was argued by the same international law firm that represents Teixeira now, and something about the Supremacy Clause. Second, Inglewood states -- with a straight face -- that Teixeira's 15-minute videos appropriate the entire "work"... which is usually about four hours long. Worse, according to Inglewood, adding criticism over clips of these videos doesn't transform them from being what they were (boring bloody videos of city council meetings documenting people who probably wish they were playing Candy Crush, and would be if the meeting weren't on video) into something else, like pointed political criticism. Plus, Teixeira is somehow using the video for a "commercial" purpose, although Inglewood just sort of states this without any explanation whatsoever.

lol:

Defendant merely republished substantially all of Plaintiff's unaltered videotapes of its Council meetings, with Defendant's derogatory comments overlaid on top. This is not transformative in the least. [...] Transformativeness is not about a defendant's subjective intent; it is about 'add[ing] something new.'

A lawyer facing a poor set of facts might be forgiven for arguing nonsense, and this would perhaps not be as surprising if it had been left in its native format (crayon). But Inglewood's position goes from wrong to holy-crap-do-you-even-believe-what-you-are-writing-or-is-this-a-practical-joke-am-I-on-TV-hi-mom when it comes to identifying the real threat to free speech:

What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.

Yes, that's right: if the city can't enforce a copyright over videos it has to give away for only the cost of putting them onto a CD, the city won't have any economic incentive to record its own meetings, which it already distributes for free on the internet. That -- and not a government demanding that a citizen pay them money after insulting them -- is the real threat to free speech here.

The six videos have each been seen only about 300 times. To put this in perspective, it cost Inglewood taxpayers $400 just to file the lawsuit. Add in the $595 it cost the city to register the copyrights on these videos -- some of which date back to 2011 -- and that means this suit has cost about fifty-five cents for every time one of these videos has been viewed. And that's before attorneys' fees.

Let's reduce that ratio: here are the six videos. Give them a view:

Perhaps someone should find out, exactly, how much this frivolous, thin-skinned lawsuit has cost Inglewood's taxpayers. I know just the man for the job. Or you could email Mayor Butts and ask him yourself. In any event, this lawsuit is enough to make one think that this Teixeira character might be on to something: these officials are not deserving of the votes of the people they represent.

Reposted from Adam Steinbaugh's blog.

Gov Uscourts Cacd 612944 1 0 (PDF)Gov Uscourts Cacd 612944 1 0 (Text)

Teixeira Motion Dismiss (PDF)Teixeira Motion Dismiss (Text)

City of Inglewood Opposition First Amendment Superheros (PDF)City of Inglewood Opposition First Amendment Superheros (Text)

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Filed Under: censorship, commentary, copyright, dehol trouth, fair use, first amendment, free speech, inglewood, james butts, joseph teixeira

34 Comments

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jupiterkansas (profile), 3 Jun 2015 @ 9:57am

Who would go into politics with a name like Butts?
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- Anonymous Coward, 3 Jun 2015 @ 10:08am
  
  Re:
  Somebody who thinks the power gained allows him have anything that offends him removed from public view.
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- Manabi (profile), 3 Jun 2015 @ 10:37am
  
  Re:
  Obviously someone who can't take being the Butt of the joke.
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- Ninja (profile), 3 Jun 2015 @ 10:45am
  
  Re:
  Actually I find the name fitting. I'll adopt that name as the standard I use for politicians when I want to mock them. It also provides awesome jokes, we should thank Mr Butts for joining politics and being kind enough to Streisand his name.
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- sophisticatedjanedoe (profile), 3 Jun 2015 @ 1:21pm
  
  Re:
  Mr. Butts apparently borrowed a letter from another censorious clown of the day, Asman (the attorney who filed a defamation lawsuit against EFF over an exceptionally stupid patent).
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- PaulT (profile), 4 Jun 2015 @ 12:08am
  
  Re:
  To get petty revenge on the people who teased him in grade school?
  [ link to this | view in chronology ]
DannyB (profile), 3 Jun 2015 @ 10:08am

Fair Use?
Wouldn't Teixeira's comments over the videos affect the marketability of the videos and thus fail one of the four factors of the Fair Use test?

(ducks under desk and hides)
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- Anonymous Coward, 3 Jun 2015 @ 11:07am
  
  Re: Fair Use?
  What marketability? They are not allowed to profit from the videos, so what market did Teixeira's commentary affect?
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  - Anonymous Coward, 3 Jun 2015 @ 11:13am
    
    Re: Re: Fair Use?
    They claim that they're allowed to recoup the expense of shooting the video in the first place.
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    - Anonymous Coward, 3 Jun 2015 @ 11:23am
      
      Re: Re: Re: Fair Use?
      For completeness, I should point out that other have said that California law states that they're only allowed to recoup the expense of duplication, NOT the expense of producing it in the first place.
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    - DannyB (profile), 3 Jun 2015 @ 1:42pm
      
      Re: Re: Re: Fair Use?
      Aren't they only allowed to recoup the cost of duplication not production of the videos.
      
      This, despite, I'm sure, the extraordinarily high production quality and special effects used in these five star worthy videos.
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      - Anonymous Coward, 3 Jun 2015 @ 2:22pm
        
        Re: Re: Re: Re: Fair Use?
        ...Aren't they only allowed to recoup the cost of duplication not production of the videos...
        
        You mean they don't post these videos online like other cities?
        
        (Yes I remember a time you had to petition for a video copy of a city council meeting, which was VHS at that time. When internet access matured my city council went to online postings.)
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- That Anonymous Coward (profile), 3 Jun 2015 @ 4:50pm
  
  Re: Fair Use?
  That argument was made, by an IP lawyer who should know better, in an actual court document.
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theodor (profile), 3 Jun 2015 @ 10:27am

This lawsuit is clearly a Butts SLAPP
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- Ninja (profile), 3 Jun 2015 @ 10:48am
  
  Re:
  Hopefully the State has anti-Butts laws. Wait..
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Vidiot (profile), 3 Jun 2015 @ 10:31am

SLAPP, SLAPP, SLAPP, SLAPP, SLAPP.

SLAPP, SLAPP, SLAPP, SLAPP, SLAPP.

The sound of one hand SLAPP-ing.
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- Ninja (profile), 3 Jun 2015 @ 10:46am
  
  Re:
  So, one hand slapping the Butts?
  
  *ba-dum-tsss*
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Anonymous Coward, 3 Jun 2015 @ 10:38am

That is one of the most insane fair use factors arguments I've seen in a long time. The second factor, especially. They argue that the work is copyrightable and therefore the second factor is in the city's favor. If that were the case, there wouldn't BE a second factor. The fact that they need to argue this at all shows how badly they flunk the second factor.
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Anonymous Coward, 3 Jun 2015 @ 10:58am

Bad faith argument
The argument that the court should not take judicial notice of the videos shows the true motives here, and how confident the city isn't in its claims. Are they seriously worried that the videos shown at the URLs listed in their own complaint are not the videos in question? Of course not. They're just trying to survive the motion to dismiss so they can force some discovery, run up everyone's legal bills, and inconvenience the defendant more - and maybe hope his money dries up and he can't afford to keep paying his lawyer. (And if somehow those videos are NOT authentic, then what exactly is their complaint based on? Where's the infringement, if not where they said it was?)

If the city thinks that if the judge looks at those videos he'll grant a motion to dismiss, then they know their case has no chance of prevailing later even if they do win this motion. So unless they think Google is in on some conspiracy to show the judge some other videos, they're just wasting everyone's time.
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- Adam Steinbaugh (profile), 3 Jun 2015 @ 11:50am
  
  Re: Bad faith argument
  The city might be right about the judicial notice issue, but I doubt it: they make a conclusory argument that there's some dispute about their authenticity, but they linked to the bloody videos in the complaint. In any event, I don't think it makes much of a difference: the city admits in its opposition that the videos contain added "derogatory" commentary. That's probably enough for the judge to toss the case even without taking judicial notice of the videos.
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  - Anonymous Coward, 3 Jun 2015 @ 9:10pm
    
    Re: Re: Bad faith argument
    The city might be right about the judicial notice issue, but I doubt it:
    
    Given that the links are in the complaint, and that the videos are integral to the complaint, and given the other ridiculous arguments presented, I'd tend to lean towards no. But if they honestly DON'T think those videos are authentic, then what exactly are they suing over? If they agree that they ARE authentic, then what's with the objection to taking notice of them, except to incur delay and expense, even if they were technically correct?
    
    If the question before the court is, "Assuming everything you say is true, is there a complaint?", and their response to that is, "Whatever you do, don't actually look at the thing we're complaining about", then what does that say about whether *they* think they have an actual case?
    
    If the only way to survive the motion to dismiss is if the videos aren't included, then the city isn't going to survive a later motion for summary judgement when they'll definitely be included anyway. It's not like they're hoping the videos could be suppressed or something. Without them there's no complaint.
    
    In the end, this may not matter except as a reason to grant attorney's fees as further evidence of frivolousness and improper purpose. The case will likely be dismissed because California doesn't allow cities to get copyrights on these meetings, and the city is a political subdivision of California and thus can't object to this via the Supremacy Clause. (The state can't tell a resident that it can't get a copyright. But it can certainly tell a part of itself not to get a copyright.)
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GMacGuffin (profile), 3 Jun 2015 @ 11:04am

I'll call that, and raise ...
This Complaint was a big fat powerplay bluff that Teixeira called ... leaving Inglewood counsel with nothing but to say ... something... anything.

"The City of Inglewood, represented by a seasoned IP litigation attorney" who has recently been introduced to Ms. Streisand...
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Josh (profile), 3 Jun 2015 @ 11:13am

copyright
Aren't they supposed to be filing copyright before it goes out to the public, not after?
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- Adam Steinbaugh (profile), 3 Jun 2015 @ 11:46am
  
  Re: copyright
  No -- you can register a copyright within three months of the first publication and still qualify for statutory damages. But the city didn't even come close to doing that.
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Dirkmaster (profile), 3 Jun 2015 @ 12:12pm

Someone needs to tell MajestyLaw
that someone stole a box of their letterhead and is filing stupid lawsuits in their name. They might want to look into that before their reputation is utterly destroyed by the Striesand Effect.
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Jordan, 3 Jun 2015 @ 12:31pm

Butt Effect > Streisand Effect?
I sincerely hope the Streisand effect is renamed the Butt Effect over this.
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Michael Kohlhaas, 3 Jun 2015 @ 12:32pm

CA law specifically allows broadcast of public meetings
It seems to me that this situation is covered by California's open meetings law, which states that:

54953.6. No legislative body of a local agency shall prohibit or otherwise restrict the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accomplished without noise, illumination, or obstruction of view that would constitute a persistent disruption of the proceedings.

So the question of whether the proceedings are subject to copyright strikes me as moot.
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Anonymous Coward, 3 Jun 2015 @ 1:17pm

"Ignore the guy"
He comes across as articulate and well-researched [...] So the best thing to do would be to ignore the guy, right?
That's an extremely cynical view of representative government.
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DannyB (profile), 3 Jun 2015 @ 1:44pm

Doesn't this lawsuit violate FRCP?
Isn't there a rule somewhere that litigation designed to, or litigation tactics designed to increase costs are against the rules? Or misusing the court system?

Any lawyers? I'm just a long time armchair Groklaw reader.
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Zonker, 3 Jun 2015 @ 3:41pm

Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.
I didn't realize that the First Amendment guaranteed an economic incentive to speak. I charge $100 per word, so the government owes me $3,500 for this comment. Just take it out of Inglewood, California's budget.
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That Anonymous Coward (profile), 3 Jun 2015 @ 4:59pm

Now I do not have a fancy dead sheepskin, but I like to think I know a tiny little bit about copyright law.
I read the filings(s) until my head really started to hurt, that was 4 pages.

From my own skewed perspective this case adds to the evidence that we have to many lawyers willing to file cases they know are merit-less just to get paid. There is no actual downside to doing this, beyond a small slap of the wrist. All of the parts of the legal system that are supposed to punish these bad acts are more concerned with the appearance of the whole, so they never pursue those who give it a bad name... missing that allowing this sort of thing to continue strips away good appearance of the whole.

The citizens of this city need to ask the elected officials to be individually responsible for all of the costs from this bogus lawsuit. They need to start recall petitions, because these actions show they have contempt for those who they govern and the law. They will waste taxpayer money, when everyone always says there isn't enough money for needed services, on trying to silence someone who made them angry. How many other questionable lawsuits have they filed that just didn't get noticed? How much cash have they bled out of the taxpayers pockets trying to protect their image, and merely proving they are unfit for office.

They are supposed to be running a city, not filing lawsuits because someone said mean things about them.

OHAI Adam! I blame my headache on you.
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Randall Fleming, 3 Jun 2015 @ 9:39pm

I am glad to see that some sunshine is being focused on this story, one which the L.A. County District Attorney, Jackie Lacey, has ignored: http://www.citywatchla.com/archive/7217-is-race-the-reason-la-s-da-won-t-act

http://www.citywatchla.c om/archive/8674-inglewood-mayor-celebrates-sunshine-week-with-50k-lawsuit-against-first-amendment

Thi s lawsuit is not the only example of attacks on Constitutional rights that the current mayor of Inglewood, James T. Butts, has attempted.

In 1999, the 9th Circuit Court of Appeals struck down a case for which Butts, as Santa Monica’s police chief, attempted to destroy Miranda Rights: “In 1995, the case California Attorneys for Criminal Justice (CACJ) v. Butts, pitted the then-Santa Monica police chief against the ACLU for his institutional practice of refusing to observe Miranda rights with suspects in custody.” This was revealed in a story whereby the mayor publicly threatened this newspaper editor at a church so-called town hall meeting. (http://www.citywatchla.com/archive/6821-inglewood-mayor-celebrates-press-freedom-day-by-threatening -journalists)

In the last few years, he has kept tight control of a local “news”paper that in the past had a secret contract with the City of Inglewood (and which prompted the California Fair Political Practices Commission (FPPC) to fine Inglewood $50,000 for its political and financial involvement) by making sure the city is the primary revenue source — more than $100,000 annually, according Inglewood warrant registers since 2013. (That “news”paper publishes an average of four photos PER WEEK of the mayor, it should be noted.) http://www.citywatchla.com/archive/7069-questionable-deal-are-the-taxpayers-funding-willie-brown-s-n ewspaper

There is Butts’ 2014 fiat regarding the three minutes allowed citizens to speak at city council minutes; it is now a scant sixty seconds, just in time for the mayoral election: http://www.citywatchla.com/archive/7607-mayor-butts-putting-the-squeeze-on-free-speech-at-inglewood- city-council-meetings

He “persuaded” USA Today to edit out a crucial statement he made about the Forum’s destruction regarding the planned football stadium: http://www.citywatchla.com/archive/8715-inglewood-mayor-forum-will-be-destroyed-for-80-000-seat-stad ium-video

He also has a habit of trying to suppress news about his felonious family members as well as Inglewood police (IPD) when it comes to his family members breaking the law. His daughter, Melissa Ashley Butts, is the offspring of TWO cops (her mother, Minnie Veasy-Butts, was an IPD officer when she married James) was stopped for reckless driving, but “daddy literally drove over from city hall and prevented the office from giving his twice-arrested 29-year-old daughter the citation: http://www.citywatchla.com/archive/8959-inglewood-s-mayor-interferes-with-daughter-s-reckless-drivin g-citation and http://www.citywatchla.com/4box-right/9071-inglewood-mayor-s-illegal-behavior-leads-to-discovery-of- daughter-s-felony-arrest

His next move concerns the blatant censorship of a group of Inglewood artists, and when that story breaks, I’ll post a link here.
- See more at: http://firstamendmentcoalition.org/2015/05/using-copyright-as-a-censors-muzzle-inglewood-files-suit- to-silence-a-city-critic/#sthash.9dJXNl8R.dpuf
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Tanner Andrews (profile), 4 Jun 2015 @ 2:52am

James Butts, Potential Butt of Jokes
While Butts is the obvious target of the criticism, the suit was filed on behalf of the city as a municipal corporation. That means that either the city delegated the power to sue, or the entire commission had to vote for this suit.

I express no view as to which of these options is dumber.
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nasch (profile), 4 Jun 2015 @ 7:02am

Pernicious effect
This one really made my jaw drop:

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable.
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