City Of Inglewood Allotted $50,000 To Hire A Lawyer Flagrantly Abuse Copyright Law To Try To Silence A Citizen

from the a-disaster-in-the-making dept

Wed, Jun 10th 2015 12:35pm — Mike Masnick

Last week, we wrote about how the city of Inglewood was trying to silence a longtime vocal critic of its mayor, James Butts, by attempting to abuse copyright law. The guy in question, Joseph Teixeira, had posted a series of videos critiquing Mayor Butts, using clips from city council meetings that had been posted to YouTube, and adding a lot of commentary over them. As we noted, it was questionable if the city could even claim copyright on the videos, but even if they could, there was no way the lawsuit could pass First Amendment muster. If the work could be covered under copyright, its use was obviously fair use. Despite this being explained to the city's lawyer -- an experienced IP attorney named JoAnna Esty of Majesty Law Group -- the city filed a brief that is so ridiculous and so laughable, many have argued that she has likely opened herself up to sanctions.

Apparently the duplicitous and ridiculous argument that Esty made on behalf of Inglewood is that the city needs to silence Teixeira by abusing copyright law in order to protect free speech. No joke:

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.

As Paul Levy pointed out in the link above, the really troubling thing here is that taxpayers are paying for this either way. And if you're wondering how much, wonder no more: the LA Times, which posted an editorial calling for Mayor Butts to resign over this, has also pointed out that the city is paying Esty more than $50,000 for this travesty of justice. Indeed, on March 17th ("Sunshine week" believe it or not), the City of Inglewood approved a $50,000 retainer for Esty for take sake of going after Teixeira, to be drawn down at $300/hour. Seriously.

Meanwhile, Teixeira's top notch lawyers from Davis Wright Tremaine, have hit back with a pretty fantastic reply that lays out all the reasons why Inglewood's legal claims are outright laughable. It even kicks off with a nice reference to last month's 9th Circuit ruling in the Cindy Garcia case:

Last month the Ninth Circuit emphatically held that “a weak copyright claim cannot justify censorship in the guise of authorship.” Garcia v. Google, Inc., ... In this case, the City of Inglewood is misusing copyright law to punish a citizen for criticizing his government, and its claim is not just weak, it is non-existent.

From there, it explains why the entire theory behind the case is faulty -- and the legal filings laughable.

In its Opposition, the City ignores virtually all of the controlling authorities cited by Mr. Teixeira that show why its claim fails as a matter of law. It also overlooks the actual contents of Mr. Teixeira’s videos, despite having specifically identified and linked to these works in its own Complaint. Because these videos are incorporated by reference into the City’s pleading they are properly before the Court, and their contents supersede any contrary descriptions in the Complaint. Avoiding discussion of all of the dispositive issues, the City cannot salvage this meritless action for several reasons.

First, the City concedes that it has no specific authority to copyright public records documenting its City Council meetings, and thus its claim is barred by California law. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1335 (2009). The City makes no effort to distinguish County of Santa Clara or to question its holding. The City’s failure to counter this decision is fatal to its claim: where, as here, there is “relevant precedent from the state’s intermediate appellate court,” and no “convincing evidence” that the state supreme court would decide differently, “the federal court must follow the state intermediate appellate court decision.”

As we mentioned last week, at one point in its original filing, the city argued some nonsense about the Supremacy Clause -- arguing that because the Constitution allows for copyright, and the US Copyright Office has authority to register the works, California cannot stop the copyrighting of the city's council meetings. It made absolutely no sense at all, and the response points this out:

The City’s only argument on this point is misguided, as the Supremacy Clause is not implicated by a state’s decision not to assert copyright in its own works. This is why every authority to consider the issue has recognized that states can choose to favor broad public access to public records over copyright absent special circumstances, as California has explicitly done.

Then they point out that Esty's arguments on behalf of the city appear to flat out misrepresent Teixeira's videos to pretend that it's not fair use:

...to avoid a finding of fair use, the City ignores the actual content of the videos and merely repeats its conclusory allegations that they are “unaltered” “verbatim” copies of the original City Council meeting videos.... But the City contradicts itself elsewhere in its Opposition, where it necessarily admits that Mr. Teixeira “adulterates” the meeting videos “by manipulating and adding derogatory comments” in order “to criticize the City.” ... Either way, the City’s characterizations of Mr. Teixeira’s videos are irrelevant, because even in the context of a motion to dismiss, “the works themselves supersede and control contrary descriptions of them, including any contrary allegations … in the pleadings.”

Finally, the filing takes on that "we're doing this to protect free speech" insanity, by rightly pointing out that, at best, this argument is "Orwellian."

Fourth, the City’s Orwellian claim that it is championing free speech by trying to quash it does not withstand scrutiny... Copyright promotes creativity by protecting the “commercial interest of the author,” but claims such as the City’s, designed to “suppress a derogatory” work are “untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.” ... These principles guide the fair use inquiry here, as state law bars the City from making any money from the sale of its City Council meeting videos.... Nor could Mr. Teixeira’s highly transformative, bitingly critical videos possibly supplant the market for the City’s unadorned meeting videos, if one could even exist....

Because the City has no copyright interest in its City Council meeting videos, and even if it did this would be a classic case of fair use, the Complaint should be dismissed with prejudice.

Citizens of Inglewood should be seriously questioning just why its government is spending taxpayer funds on this kind of nonsense.

Inglewood v Teixeira Reply Re Motions Dismiss Strike (PDF)Inglewood v Teixeira Reply Re Motions Dismiss Strike (Text)

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Filed Under: commentary, copyright, free speech, inglewood, james butts, joanna esty, joseph teixeira
Companies: majesty law group

43 Comments

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Groaker (profile), 10 Jun 2015 @ 12:45pm

Potential sanctions? Like a $1-2K fine? Meaningless. Not even the cost of doing business.

I suspect that disbarment would be appropriate. But even suspension for a year would be a good lesson.
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Power Guy Rules (profile), 10 Jun 2015 @ 12:46pm

Shaking my head
I can't believe that City of Inglewood hired a copy-n-paste attorney named JoAnna Esty for $50,000.

See her profile - she's ranked as "average" attorney:
http://www.avvo.com/attorneys/90045-ca-joanna-esty-43731.html
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That One Guy (profile), 10 Jun 2015 @ 12:48pm

Citizens of Inglewood should be seriously questioning just why its government is spending taxpayer funds on this kind of nonsense.

Followed by immediately investigating whether there's any way to remove those idiots from office before they spend even more taxpayer money protecting their pathetic and apparently fragile little egos. Bullies and thugs like this are clearly unfit for any public office, and need to be removed from it as quickly as possible to minimize damages.
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Anonymous Coward, 10 Jun 2015 @ 12:49pm

Somebody in Inglewood is hurt in the butt.
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Adam Steinbaugh (profile), 10 Jun 2015 @ 12:56pm

Being optimistically pedantic here, but Inglewood didn't necessarily spend $50,000 -- they signed a retainer giving the attorney that amount, but that's for her firm to bill upon. Perhaps they believed that there was a decent chance this would go through substantial motion practice, so they needed a big warchest to draw upon. I think it's fairly clear that's not going to happen.

So, if the attorney bills less than $50k on this case, Inglewood should get the balance refunded to them. And if we're judging the quality of Inglewood's opposition to the motions to strike and dismiss, Inglewood should get about... oh, I'd say, $50,000 back.

That said, if Teixeira seeks his own attorney's fees (and he should), I suspect they'll be significant, and the total loss to Inglewood's citizens may be substantially more than $50,000.
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Mike Masnick (profile), 10 Jun 2015 @ 1:02pm

Re:
Being optimistically pedantic here, but Inglewood didn't necessarily spend $50,000 -- they signed a retainer giving the attorney that amount, but that's for her firm to bill upon. Perhaps they believed that there was a decent chance this would go through substantial motion practice, so they needed a big warchest to draw upon. I think it's fairly clear that's not going to happen.

So, if the attorney bills less than $50k on this case, Inglewood should get the balance refunded to them. And if we're judging the quality of Inglewood's opposition to the motions to strike and dismiss, Inglewood should get about... oh, I'd say, $50,000 back.

Yeah, I just edited the post to reflect that...
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ScottK, 10 Jun 2015 @ 1:06pm

Fair use?
I'm not a lawyer, but am I wrong to read Esty's argument quote above as not just saying "Teixeira's videos are not fair use" but really asserting that fair use itself is invalid? That line of argument seems a little excessive.
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Anonymous Coward, 10 Jun 2015 @ 1:09pm

Re: Shaking my head
She is doing something right if she can milk $50,000 out of a client.
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That One Guy (profile), 10 Jun 2015 @ 1:11pm

Re: Fair use?
Excessive but expected. Maximalists and others who like to use copyright as a censorship tool absolutely hate fair use, so they like to attack it whenever they can, doing everything possible to limit and/or undermine it.
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Uriel-238 (profile), 10 Jun 2015 @ 1:13pm

"Copyright law would be eviscerated if Defendant's argument is adopted."
One could only hope.
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Anonymous Coward, 10 Jun 2015 @ 1:21pm

Re:
Potential sanctions...a vote of no confidence in the entire administration of Inglewood as per it's own by-laws and an immediate election gets called.....

And the mayor gets thrown out on his corrupt, bribe-taking, prostitute-using, drug-dealin' Butt.....
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Anonymous Coward, 10 Jun 2015 @ 1:21pm

Re: Re: Shaking my head
I suspect she 'milked' something out of Mayor Butts to get that kind of dealio....
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This comment has been flagged by the community. Click here to show it

Torweg, 10 Jun 2015 @ 1:22pm

City's lawyer must read Techdirt to get idea of all-powerful copyright!
In practice, these attempts rarely work, now do they? How many times have you run items like this pointing out that using copyright wrongly does NOT work? Clickbaity Techdirt helps spread the myth with its "sky is falling" schoolgirl style.

Oh, I suppose it's okay to rail at such attempts, keeps you off the streets, but clearly your target is copyright as such, rather than lawyers grasping for a tool, though this once you do point that out.
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JP Jones (profile), 10 Jun 2015 @ 1:44pm

Copyright should never, ever, in a million billion years, be permitted to cover meetings. If the purpose of copyright is to incentivize the creation of new works, and the work in question is meetings, we need to put a stop to this immediately before all human productivity grinds to an absolute halt.

Humanity, you have been warned!
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Anonymous Coward, 10 Jun 2015 @ 1:49pm

Oh how I wish the Mayor's first name was "Moor".

...

...

...sorry.
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Anonymous Coward, 10 Jun 2015 @ 1:52pm

But...But....my feels!!!
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Anonymous Coward, 10 Jun 2015 @ 2:04pm

it seems that this IP lawyer is perhaps not so HIP. it would be good for her to get sanctions. perhaps it would teach her a lesson and maybe the verdict would help to illuminate what can and cant be done in these sort of circumstances, even if it does piss off a thin-skinned official! and that is really the issue. this thin-skinned official thinks he is above everyone else, as a lot of others in similar positions do, and can do as he pleases because the laws dont apply to him or he can transform them to mean what he wants them to mean.

now where have i read about that happening before?
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Anonymous Coward, 10 Jun 2015 @ 2:05pm

Abolish Copyright
It's the right thing to do.
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Nastybutler77 (profile), 10 Jun 2015 @ 2:14pm

"Inglewood always up to no good."

Dr. Dre knew this 20 years ago. Nothing has changed.
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JoeCool (profile), 10 Jun 2015 @ 2:27pm

Better argument
She SHOULD have argued that the "meetings" were actually fictional works acted out for the entertainment of the townfolk, thus making them entirely suitable for copyright. Makes more sense than what she tried. :)
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John William Nelson (profile), 10 Jun 2015 @ 2:56pm

City may have to pay Defendant's Attorney Fees
Copyright law has a fee shifting statute which basically says you may have to pay the other side's reasonable attorney's fees if you lose.

Well, I don't know how the 11th Circuit handles this aspect of copyright law, but the City may not just be paying its own attorney's fees, it may be paying its critics as well.

Copyright fee shifting is a double-edged sword.
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That One Guy (profile), 10 Jun 2015 @ 3:51pm

Re: City may have to pay Defendant's Attorney Fees
In a case like this it would seem appropriate to garnish the pay of the mayor and others involved to pay any fees, rather than hitting the taxpayers with it.
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Bamboo Harvester (profile), 10 Jun 2015 @ 3:53pm

$50k Retainer
$50k retainer at $300/hour is 166.66 hours of billable time. Most lawyers pad the hell out of billable time, but I don't see this going more than about fifty hours ($15,000) at the very most. And even that is ludicrous.

On the other hand, lawyers, like plumbers, carpenters, or IT guys do what they're paid to do, to the best of their ability. For all we know, her filing IS the "best" attack - even if doomed to fail.
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Gateway, 10 Jun 2015 @ 5:19pm

City's lawyer must read Techdirt to get idea of all-powerful copyright!
In practice, these attempts rarely work, now do they? How many times have you run items like this pointing out that using copyright wrongly does NOT work? Clickbaity Techdirt helps spread the myth with its "sky is falling" schoolgirl style.

Oh, I suppose it's okay to rail at such attempts, keeps you off the streets, but clearly your target is copyright as such, rather than lawyers grasping for a tool, though this once you do point that out.
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Anonymous Coward, 10 Jun 2015 @ 5:36pm

Re:
out_of_the_blue just can't stand it when due process is enforced.
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Anonymous Coward, 10 Jun 2015 @ 5:56pm

Re: City's lawyer must read Techdirt to get idea of all-powerful copyright!
"though this once you do point that out."

WTF are you trying to say here? I mean the rest was pure nonsense but that bit is just un-decipherable.
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Anonymous Coward, 10 Jun 2015 @ 5:59pm

Re: City's lawyer must read Techdirt to get idea of all-powerful copyright!
"though this once you do point that out."

Again, you make no sense, not even when your word choice and grammar are correct, which they weren't here.
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Sheogorath (profile), 10 Jun 2015 @ 10:33pm

Good argument
Simply put 'Plaintiff' in place of 'Defendant' along with a few other necessary changes, and Esty's onto something. ;)
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Anonymous Coward, 10 Jun 2015 @ 11:15pm

Re:
Agreed. Why the United States
Doesn't have the death penalty for this sort of crime but murder is beyond.
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Bergman (profile), 11 Jun 2015 @ 2:14am

Re: Re:
It actually wouldn't take much to do that, at least for life imprisonment. The death penalty is generally held to be cruel and unusual unless a death occurred as a result of the crime.

Simply amend 18 USC 2381 to add words to the effect that reasonably knowingly and willfully enacting an unconstitutional law is to be considered treason.

Perhaps modify Section 2384 along similar lines, to cover just following orders you reasonably know are illegal as well.
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Anonymous Coward, 11 Jun 2015 @ 3:29am

Bad joke coming in
Instead of having their threats performed by Esty, Inglewood should have gone to Etsy for a nicely knitted threat letter.
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Robert, 11 Jun 2015 @ 4:38am

Re: Shaking my head
Likely they wanted better but better lawyer told them they were nuts and refused.
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Just Another Anonymous Troll, 11 Jun 2015 @ 5:49am

Re: City's lawyer must read Techdirt to get idea of all-powerful copyright!
You forgot to rant about Google and pirates. Just append this to the end of your post:
This must be a Google plot to destroy copyright so pirates can steal all the content and get paid for it and slightly reduce my Hollywood and recording industry paymasters' bonuses!
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Pragmatic, 11 Jun 2015 @ 6:04am

Re:
First name: Carl.

You can tell where this is going...
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DaveMustaine (profile), 11 Jun 2015 @ 6:37am

Nice fragment/run on sentence
You really should check out your local community college to tighten up on your English.

"City Of Inglewood Allotted $50,000 To Hire A Lawyer Flagrantly Abuse Copyright Law To Try To Silence A Citizen"
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Anonymous Coward, 11 Jun 2015 @ 6:44am

Re: City's lawyer must read Techdirt to get idea of all-powerful copyright!
"How many times have you run items like this pointing out that using copyright wrongly does NOT work?"

As long as it goes on, little girl.
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Anonymous Coward, 11 Jun 2015 @ 6:46am

Re: City's lawyer must read Techdirt to get idea of all-powerful copyright!
"How many times have you run items like this pointing out that using copyright wrongly does NOT work?"

As long as it continues, little girl.
Stop crying.
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joe teixeira, 11 Jun 2015 @ 8:56am

Payments to Majesty Law Group
First, thanks to all who support my fight. Second, just to clarify the City's payments to Majesty Law Group: The city approved two separate payments of about $3,000.00 in late 2014 or early 2015. Then they approved the agreement for $50,000.00, which could have been seen as a retainer, but then they approved another $5,000.00 (a round amount, so probably not related to specific costs) at the 6-2-15 meeting.
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Anonymous Coward, 11 Jun 2015 @ 10:35am

I said what, what in James Butt
http://southpark.cc.com/clips/165193/what-what-in-the-butt
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Sara Goss, 12 Jun 2015 @ 9:05am

Joanna Esty has done this before
Joanna Esty aka JoAnne Beery, read this (from when she was practicing in Maryland):

http://www.leagle.com/decision/199117089MdApp81_1166.xml/BEERY%20v.%20MARYLAND%20MED.%20LA B.
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Sara Goss, 12 Jun 2015 @ 10:05am

Re: Payments to Majesty Law Group
Not sure if it'll make any difference but here's some additional information on Joanna Esty aka JoAnne Beery:

http://www.leagle.com/decision/199117089MdApp81_1166.xml/BEERY%20v.%20MARYLAND%20MED.%20LAB.
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Tanner Andrews (profile), 17 Jun 2015 @ 12:39am

Re: Payments to Majesty Law Group

First, thanks to all who support my fight.

Normally, a party to litigation is well advised to listen to his atty. His atty will generally advise him not to have any comment on the pending litigation.
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Anonymous Coward, 10 Oct 2015 @ 5:27am

Dismissed with Prejudice and 117K in Attorney's fees awarded
The Motion for Attorney's fees appropriately referred to Joanna Esty as a "copyright troll".
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