No, Inglewood Cannot Claim Copyright On City Council Meetings And Sue A Critic For Commenting On Them

from the copyfraud dept

Fri, Aug 21st 2015 2:33pm — Mike Masnick

You may remember the bizarre story we had a couple of months ago of how the city of Inglewood, California was suing a critic for copyright infringement. The critic, Joseph Teixeira, does not like Inglewood mayor James Butts. So he takes video (that the city posted online itself) of city council meetings, and adds commentary mocking the mayor. And that, the city claims, is copyright infringement. Not only that, but Inglewood spent $50,000 on a big time lawyer to try to silence Teixeira by abusing copyright law.

As we explained, the whole thing was bullshit on multiple levels. First, it's the government trying to silence a critic. That's a pretty big First Amendment no-no. Second, there's no legitimate copyright claim in the videos. Third, even if there were a copyright claim in the videos (and there's not), this would easily be fair use. And, of course, then the city made it even worse -- claiming that Teixeira had altered the videos after the lawsuit to protect himself. The court asked the city to prove it, and not surprisingly the city could not. Because it wasn't true.

Adam Steinbaugh, now the "new guy" at Popehat, has all the details of the beatdown the court gave the city, which you can also read directly here. Let's start with the copyright issue. Turns out, as pretty much everyone knew, you can't claim copyright over your city council meetings:

The only published authority on the question of the ability of California public entities to assert copyright over works they produce holds that the City may not assert a copyright interest in the City Council Videos. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009), the California Court of Appeal addressed the county’s denial of a request for a geographic information system base map it had created. The court carefully considered California law, including the CPRA and the state’s policies towards openness and accessibility of the writing of public officials and agencies. Id. at 1320 (citing Cal. Const. art. 1 § 3(b)(1) (the state constitution explicitly recognizes the “right of access to information concerning the conduct of the people's business” and to provide that “the writings of public officials and agencies shall be open to public scrutiny.”) The court evaluated the statutory language of the CPRA and held in part that in the absence of “an affirmative grant of authority to obtain and hold copyrights” a California public entity may not do so.

The court is so unimpressed with Inglewood's attempt to get around all of this that it's not even worth discussing what their reasons were. They were bad, and the city should feel bad (that it's wasting taxpayer dollars on this kind of crap).

The court then notes that, even if the copyright was valid, it still would be fair use. The court doesn't even need to go this far, having correctly determined the lack of copyright, but decides to do so anyway, just in case the city is thinking of appealing.

A review of the videos is sufficient for the Court to rule that the Teixeira Videos are protected by the fair use doctrine as a matter of law. The Teixeira Videos use brief portions of the larger works in order to comment on, and criticize the political activities of the City Council and its members. He uses carefully chosen portions specifically for the purposes of exercising his First Amendment rights, and in doing so, substantially transforms the purpose and content of the City Council Videos.

The city's response is laughable. It's almost as if whoever wrote the argument for the city has never come across fair use before or, you know, being honest in court.

The City’s contention that Teixeira is “simply republishing untransformed, copies of the Copyrighted works, and free-riding on the City’s expenses” is plainly incorrect on even the most cursory review of the Teixeira videos. The City’s claim that “[t]he facts alleged a complete lack of transformativeness” is also irrelevant given the reference by the Complaint to the videos themselves.

Or how about this time, where they claim he's using too much of the videos (even though it's clear he only uses a small portion of them):

The City argues that Teixeira fails to meet his supposed burden of showing that it is “essential” to make the copies for his purpose of commenting on it. The City contends that each topic area of the City Council meetings is “an independent and entire work” and Teixeira cannot show why it is necessary to copy these “entire” works. However, a review of the videos makes it clear that Teixeira has copied only the parts of the City Council Videos that serve his purpose of making comment on them, or criticizing very particular statements by Butts. This use of another’s material has been frequently recognized as protected fair use.... The City’s exceptionally narrow view of an “entire” work is without merit and contrary to the purpose of the fair use doctrine, which permits the use of reasonable quantities of a work for the purpose of criticism and comment.

Oh, and then there's the bit where the city claims that Teixeira's video will harm "the market" for its videos. The court sees right through that. Not only is that a ridiculous argument (I mean, really, what's "the market" for the city of Inglewood's city council meetings?), it's also true that the city is barred by law from making money off of those videos.

The City argues that the factor favors its position because Teixeira’s copying denies the City of the opportunity to “recoup its expenses” and “deprives [the City] of potential revenue.” This argument is without merit and flatly contradicted by the California law that governs the City’s creation and use of the City Council Videos.

California law prevents public agencies from charging the public anything more than the “direct costs of duplication” when providing public records. Cal. Gov. Code § 6253(b)... the Legislature “specified . . . that the sole charge should be that for duplication” and specifically for “the direct cost of duplication” and not for “indirect” costs of duplication).

The City therefore may only collect fees to reimburse for the direct costs of providing copies of any record it creates, including the City Council Videos. It is specifically barred by law from charging any fee to recoup the costs of original production. And it is certainly not permitted to use the City Council Videos to generate any form of revenue. There can therefore be no commercial market for the City Council Videos and no activity by Teixeira can deprive the City of any revenue.

And thus, the City of Inglewood has no legal leg to stand on, not that it ever did:

Having reviewed the accused videos, the Court determines that – even assuming the City has any copyright interest to assert – they are clearly protected by the fair use doctrine. Indeed, the Court can scarcely conceive of works that are more appropriately protected by the fair use doctrine and § 107 than the Teixeira Videos. He is engaged in core First Amendment speech commenting on political affairs and matters of public concern. To do so, he has taken carefully selected and short portions of significantly longer works, and embellished them with commentary and political criticism through music, his voice, and written subtitles. Even if California law allowed the City to assert a copyright claim, Teixeira’s activities plainly fall within the protections of fair use.

The City accuses Teixeira of wanting “to criticize the City without doing his own work” by “posting substantially all of the full [City Council Videos] with [his] comments posted on top of them.” .... Even if the City’s characterization of the Teixeira Videos were accurate, fair use would allow such use for the purpose of commentary.

All of this should make you wonder how the case got this far at all. How did the lawyer, to whom the city agreed to pay $50,000, not tell them that this would end badly? Also, what kind of city sues its critics, first of all, and then completely abuses copyright law to do so? As the LA Times noted about this case:

There's something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create.

Inglewood v Teixeira Order of Dismissal Lol Mayor Butts Lol (PDF)Inglewood v Teixeira Order of Dismissal Lol Mayor Butts Lol (Text)

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Filed Under: censorship, copyright, criticism, fair use, free speech, inglewood, james butts, joseph teixeira, politics

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Anonymous Coward, 21 Aug 2015 @ 3:00pm

Fundamentally outrageous
There's something fundamentally outrageous about…
Most probably, my sense of fundamental outrage is seriously miscalibrated—I'm having a difficult time being outraged about anything at all lately. Outrage fatigue.

Looking at this lawsuit with a rather dispassionate sense of detachment, it strikes me to ask to the question whether the lawsuit was fundamentally frivolous?

The fair use reasoning set forth in the decision actually seems stronger than the grounds upon which the court ultimately relied. Which is not to say that the court's decision is in error, but to point out that this lawsuit should have been seen to have been doomed from the get-go.

I guess perhaps it would be prudent to wait until the Ninth Circuit has its say. But is there really any doubt about what the Ninth Circuit would decide? Is an appeal frivolous?
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Anonymous Coward, 21 Aug 2015 @ 3:02pm

methinks the lawyer is a friend of family member of those that are taking offense at what this critic did and are using it as a way to divert public funds to themselves through a crony
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Anonymous Coward, 21 Aug 2015 @ 3:14pm

A lawyer CAN tell his clients they're idiots.
However, his practice would suffer. Obviously this lawyer wants to get more practice in his trade.
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Sheogorath (profile), 21 Aug 2015 @ 3:15pm

[The city claimed] that Teixeira had altered the videos after the lawsuit to protect himself. The court asked the city to prove it, and not surprisingly the city could not. Because it wasn't true.
Or maybe because one cannot prove a negative. ;)
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Anonymous Coward, 21 Aug 2015 @ 3:24pm

50,000 reasons
"How did the lawyer, to whom the city agreed to pay $50,000, not tell them that this would end badly?"

Either you tell them and get a few hundred $ or you don't and get $50,000. Capitalism says take the $50,000.
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Anonymous Coward, 21 Aug 2015 @ 4:18pm

can someone please explain to me why various lawyers or law firms get involved in cases when they know already what the law states and that all it will achieve is making itself/ themselves look absolutely stupid and not worthy of the term lawyer? surely no amount of money can replace looking like a fucking idiot, can it?
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FamilyManFirst (profile), 21 Aug 2015 @ 4:58pm

Make 'em pay
Let's see some ordinances passed in cities around the nation that require City Council members to pay the attorney's fees for civil cases that the Council brings which lose. I'm betting that there would be a 99% reduction in said civil cases.
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Anonymous Coward, 21 Aug 2015 @ 6:37pm

"Why didn't the lawyer tell them..."

He's a scum.sucking lawyer, that's what they do and he gets a guaranteed payday for his effort of futility.

It gave a laugh reading that though.
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Anonymous Coward, 21 Aug 2015 @ 7:34pm

Mikey just hates it when copyright law is enforced. Bawk bawk! LOL!
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Anonymous Coward, 21 Aug 2015 @ 7:56pm

Inglewood mayor James Butts,
the joke of many butts.
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Anonymous Coward, 21 Aug 2015 @ 8:08pm

Re:
It is quite possible they had no idea what the law was in this case, or were so full of themselves figured they could win despite the law. Some are too stupid to realize when they wrong. Money can amplify this effect.
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dr evil, 22 Aug 2015 @ 3:52am

perhaps time to step down
if you can't get this right, Butts, maybe you need to not be mayor. hired to do good for the city, not just good for yourself.
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tqk (profile), 22 Aug 2015 @ 7:31am

Re: Fundamentally outrageous
... this lawsuit should have been seen to have been doomed from the get-go.

Yes, and I ask again, WTF is wrong with law societies that they refuse to police the actions of charlatans in their industry? Quack physicians can be sued damned near to death. Incompetent engineers are ousted the moment they're discovered, & etc.

Yet lawyers who fail to explain the relative merits of clients' cases WRT the law are allowed to just bill and bill and bill until their crap case is eventually tossed out. This case wasn't even close to a toss up. Credulous clients are encouraged to waste time and money on stillborn tilting at windmills that the lawyer should have advised them against from the beginning.

There is no excuse for this lawyer for allowing this case to go ahead. Just reading the relevant published law would've immediately shown Inglewood had no case, and that's on First !@#$ing Amendment grounds! This lawyer should be disbarred on grounds of illiteracy or fraud at least.
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tqk (profile), 22 Aug 2015 @ 7:35am

Lawyers. :-P
methinks the lawyer is a friend of family member of those that are taking offense at what this critic did and are using it as a way to divert public funds to themselves through a crony

Plausible. So what's the law society going to do about it? Nothing.
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tqk (profile), 22 Aug 2015 @ 7:44am

Re:
Mikey just hates it when copyright law is enforced.

I take it you missed this?
The court evaluated the statutory language of the CPRA and held in part that in the absence of “an affirmative grant of authority to obtain and hold copyrights” a California public entity may not do so.

This was not a copyright case. It was an attempt at barratry. Why don't you go play in traffic, or die screaming in a fire?
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Glenn, 22 Aug 2015 @ 8:47am

Lawyers... I'd call them "legal whores", but that would be an insult to whores everywhere.
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Anonymous Coward, 22 Aug 2015 @ 9:06am

Re:
Yawn.
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Anonymous Coward, 22 Aug 2015 @ 9:17am

Re: Re: Fundamentally outrageous
I guess because if an engineer says "A cubic tire won't work, try again" and you ask another engineer for a second opinion they will likely say the same thing. The most they can do is waste your money trying and find out it doesn't work but they probably won't because then they will look foolish.

But when a lawyer says "your case won't fly" you can just keep asking lawyers until you either find some rookie or someone willing to take your money at your insistence that it should work. In some cases perhaps the stubborn client maybe informed by the lawyer that this probably wont' work but the client says go ahead with it anyways to which the lawyer continues on getting paid to fight a losing battle at the absolute insistence of the client who was well informed this is a bad case. If the client is willing to pay for a case they were informed is a dead end then why not?

You can't argue with the laws of physics. A cubic tire won't work no matter who you ask (though there was a Mythbusters episode where they kinda got it to work for a short period of time though the results were disastrous).

and another issue is that if an engineer built something that sucks it's not necessarily something that will become publicly available. There are probably hobbyists, 'engineers', etc... that have tried all sorts of crazy and stupid things that didn't work (heck, even famous inventors tried things that won't work a million times before finding something that does work) but what we hear about is what works. Most of what doesn't work got eliminated in testing, the laws of physics is the arbitrator of what will work and those laws will decide, during testing, whether or not a design will work. Where liability may come in is if not enough testing was done to ensure something is safe to use before being put into more widespread use. We never see all the bad designs that don't work. Court cases are a matter of public record and they affect everyone so we tend to keep track of them a lot more even when someone is simply fighting a losing battle because those losing battles, too, set precedent that's relevant to us all.
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Anonymous Coward, 22 Aug 2015 @ 9:34am

It's All In The Hours
"All of this should make you wonder how the case got this far at all. How did the lawyer, to whom the city agreed to pay $50,000, not tell them that this would end badly? Also, what kind of city sues its critics, first of all, and then completely abuses copyright law to do so? As the LA Times noted about this case:
There's something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create."

Repeat after me: "Billable Hours". Lawyers have never been known to exercise ethics when their billable hours might be in jeopardy. I fault the attorney in this case because he took the money KNOWING it was a fallacious claim and pursued it anyway because $50,000!
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Anonymous Coward, 22 Aug 2015 @ 9:41am

Re: Re: Re: Fundamentally outrageous
If the client is willing to pay for a case they were informed is a dead end then why not?
FRCP: Rule 11

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Anonymous Coward, 22 Aug 2015 @ 9:48am

Re: Re: Re: Fundamentally outrageous
If the client is willing to pay for a case they were informed is a dead end then why not?
FRAP: Rule 38
Rule 38. Frivolous Appeal

If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.
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Anonymous Coward, 22 Aug 2015 @ 10:32am

Re: Re: Re: Fundamentally outrageous
If the client is willing to pay for a case they were informed is a dead end then why not?
28 U.S. Code § 1912 - Damages and costs on affirmance
Where a judgment is affirmed by . . . a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs.
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Anonymous Coward, 22 Aug 2015 @ 10:38am

Re: Re: Re: Fundamentally outrageous
If the client is willing to pay for a case they were informed is a dead end then why not?
17 U.S. Code § 505 - Remedies for infringement: Costs and attorney’s fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
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JoeCool (profile), 22 Aug 2015 @ 11:28am

Re:
No, they could have proved it if he HAD altered the videos. That's simple to do. That saying "you can't prove a negative" only applies to certain things, not everything. "Prove that's not water!" Okay, do a little chemistry and you can easily prove a negative... or disprove it if it happens to be water.
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Anonymous Coward, 22 Aug 2015 @ 11:50am

Re: Re:
It is quite possible they had no idea what the law was in this case
State Bar of California: Rules of Professional Conduct: Rule 3-110 Failing to Act Competently
(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

(Regarding applicability of California rules of professional conduct see In Re Snyder(1985) footnote 6, second paragraph: “The Court of Appeals was entitled, however, to charge petitioner with the knowledge of and the duty to conform to the state code of professional responsibility. ” Also In Re Giradi (9th Cir. 2010) citing Snyder footnote 7 as authority for applicability of state rules of professional conduct.)
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Gwiz (profile), 22 Aug 2015 @ 12:58pm

Re: Re: Re: Re: Fundamentally outrageous
Quoting statutes without articulating your argument and why that particular statute is relevant is useless (and kinda lame and sorta annoying).
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Anonymous Coward, 22 Aug 2015 @ 1:48pm

Re: Re: Re: Re: Re: Fundamentally outrageous
Quoting statutes without articulating your argument…
I was unaware that polite and civil discussion here must always be framed as “argument”.

… why that particular statute is relevant…
You can read English. You are presumed not to be an idiot.

… is useless (and kinda lame and sorta annoying).
Fact-free bloviation is useless. Intelligent discussion requires facts. Court rules and statutes are facts. Legal facts.

Now, if you want to assert that these particular rules and statutes do not actually deter attorneys from embarking on frivolous lawsuits, or from pursuing fruitless appeals from the dismissal thereof —why then we might have a public policy question of some significant importance.

But if you just want to vaguely object to “relevance” and “lack of argument” on the basis that you prefer a discussion filled with nothing but fact-free bloviation… well, take your pick.
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Gwiz (profile), 22 Aug 2015 @ 2:56pm

Re: Re: Re: Re: Re: Re: Fundamentally outrageous
You can read English. You are presumed not to be an idiot.

Meh. Whatever. Since I have no idea what you trying to convey by posting random quotes without explanation, I'll just say: Have a nice life.
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Anonymous Coward, 22 Aug 2015 @ 10:26pm

Re: Re: Re: Re: Fundamentally outrageous
Good point. and I think lawyers should (perhaps be required to) warn plaintiffs of the potential damages they could face when they absolutely insist on going forward with a frivolous lawsuit. Perhaps failure to warn plaintiffs of this could result in the lawyer having to eat the damages or perhaps to damages the plaintiff's lawyer must pay to the court and limitations on how much the plaintiff's lawyer may bill the plaintiff. This could deter lawyers from taking cases without warning the plaintiffs of such potential damages first.
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Anonymous Coward, 22 Aug 2015 @ 10:28pm

Re: Re: Re: Re: Re: Re: Re: Fundamentally outrageous
I found his/her post to be relevant
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Anonymous Coward, 23 Aug 2015 @ 1:25am

Re: Re: Fundamentally outrageous
Credulous clients are encouraged to waste time and money on stillborn tilting at windmills that the lawyer should have advised them against from the beginning.

Or, as is often the case when those in power, and large companies file suit, they do not care about winning or losing, but rather in sending a message to people that if you annoy us we will tie you up in court for years, or until you surrenders or go bankrupt.
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Anonymous Coward, 23 Aug 2015 @ 1:47am

Re: Re:
Fuck you, Mikey. I'll tell you to fuck off every day and twice on Sundays.
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Mike W, 23 Aug 2015 @ 8:49am

Re:
You don't suppose that the layers informed the city the suit was groundless? It wouldn't be the 1st time gov't used taxpayer funds to bully/silence/crush dissent. If this guy didn't have the resources & tenacity to fight... "you can't fight city hall" would've run its natural course.
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Anonymous Coward, 23 Aug 2015 @ 5:42pm

Re: Re: Re:
Aw, did the antidirt need to have his butthurt massaged?

antidirt just hates it when due process is enforced. Up yours, asshat!
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Anonymous Coward, 24 Aug 2015 @ 2:31am

The more laws and regulations created, the more laws and regulations abused
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David (profile), 24 Aug 2015 @ 7:43am

I really admire this judge
A lot of the time, we have seen judges in these cases come back with a single decision. as you mentioned, the judge could have stopped with: "You have no right to Copyright".

Instead, they went deeper in the analysis, not ducking the the remaining items, saying: even if you could have copyright, you would still be wrong. even if you weren't wrong about fair use, you have no basis for saying they cost you sales, etc.

A good job. How do we get guys like this to run for something?
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GEMont, 24 Aug 2015 @ 2:05pm

Re: Re: Re: Re: Re: Re: Fundamentally outrageous
My reading of those law quotes tells me that in order for the lawyer to even start this case rolling through the courts, all of these documents would have to first be filed with the courts.

Does the court not actually read the presented documents to verify that the case is not frivolous, or foolish, or fits any of the non-case scenarios listed??

Do they just accept the lawyer's judgement, that the case has merit??

If not, and the courts do examine each case for merit, then I would have to say it was the courts fault for allowing this case to go forward.

---
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Tanner Andrews (profile), 24 Aug 2015 @ 8:05pm

Re: Re: Re: Re: Re: Fundamentally outrageous

I think lawyers should (perhaps be required to) warn plaintiffs of the potential damages they could face when they absolutely insist on going forward with a frivolous lawsuit

Yes, and I suspect these are fairly common. The Federal rules provide for a Rule 11 motion for sanctions. Florida provides this by statute. Check your state law for corresponding details, perhaps by tracking how the Federal rules flow into your state rules.

The ethics rules generally prohibit lawyers from promoting cases known to be meritless, though an argument for application of or extension of existing law is an exception. That is how law evolves: compare Pace v. Alabama, 106 U.S. 583 (1883), to Loving v. Virgina, 388 U.S. 1 (1967). Or, the classic case, Plessy v. Ferguson, 163 U.S. 537, to the several ``Dining Car'' cases,or Brown v. Board of Education, 347 U.S. 483.

In this case, I cannot see any plausible explanation for the atty taking the city's case. There is no claim that present law is incorrect, nor any principle to be extended to a new area. The attorney for the city should, however, be grateful for the $50,000.00.

In a situation like this, I am glad not to represent the city.
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Anonymous Coward, 24 Aug 2015 @ 9:34pm

Re: Re: Re: Re: Re: Re: Re: Fundamentally outrageous
If not, and the courts do examine each case for merit, then I would have to say it was the courts fault for allowing this case to go forward.
In the main article above, Mike linked both to the previous Techdirt story, as well as to Adam Steinbaugh's update at Popehat. Both of those links provide the (relatively short) procedural history of the case so far.

Essentially, Inglewood complained in federal district court. Teixeira moved to dismiss under FRCP Rule 12(b)(6). The district court has now granted Teixeira's 12(b)(6) motion, and ordered the case dismissed.

While federal courts may, in certain circumstances, act on their own motion (“sua sponte”), ordinarily, federal courts only act on the motion of the parties.

Thus, in short, the district court kicked the case at the earliest ordinary opportunity for the judge to toss a case. That is, after the defendant asked the court to get rid of it, roughly because there was no “there” there in the case.

This dismissal is a final order from the district court, which the losing party may choose to appeal up to the Ninth Circuit Court of Appeals.
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Anonymous Coward, 24 Aug 2015 @ 11:24pm

Re: Re: Re: Re: Re: Re: Re: Re: Fundamentally outrageous
I found his/her post to be relevant

( Not to spoil Gwiz's performance art —if it is performance art— but otoh, why should I care that much about spoiling his act? He just told me to drop dead, and isn't speaking to me ever again. So I might as well make explicit one of the deeper and long-running issues that he has raised here yet again.

On the one hand, I think it's generally agreed that Techdirt aims for a general audience. Law is most definitely a specialist discipline.

Yet, on the other hand, how do we have a republic governed by the rule of law? if the average citizen doesn't understand the law? If the public is going to discuss public policy in any sensible fashion —to govern themselves— then the public must somehow acquire a more-than-superficial understanding of law and the legal system.

Ideally, in my mind, we would have a mix here at Techdirt of people knowledgable in the law who have an interest in technology, combined with people knowledgable in technology who have an interest in law and public policy, all along with whoever else happens to show up to make a worthwhile contribution to the discussion.

With that kind of mix of people, though, whose communication with each other is entirely computer-mediated, building shared context is a notoriously hard problem. Yet communication simply cannot occur without both signal and context. )
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