Court Orders Man Who Sued News Orgs For Clipping His Facebook Video To Pay Everyone's Attorney's Fees

from the good dept

Wed, Jun 28th 2017 3:23am — Timothy Geigner

Earlier this year, we brought to you the story of one man's quest to sue all of the news organizations for using a clip of his Facebook video in which his partner is giving birth to his child. Kali Kanongataa sued ABC, NBC, Yahoo, CBS, Microsoft, Rodale and COED Media Group for reporting on the video and showing a clip of it, claiming copyright infringement. It was an odd claim for many reasons, not the least of which being that Kanongataa made the stream public and available on his Facebook page, not to mention the obvious Fair Use case to be made by the news groups reporting on the matter. The suits didn't work, of course, with most or all of them having now been dismissed.

But that wasn't the end of the story for Kanongataa and his crack legal team that saw fit to entertain this frivolity. The judge in the case, Lewis Kaplan, decided to verbally light his lawyers on fire when assessing Kanongataa to pay legal fees to the defendants.

No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair.

That's a fairly damning statement on the court records for the legal staff of Kanongataa, though it stopped short of sanctioning them. Instead, Kanongataa's lawyers will have managed to get him saddled with these court fees by entertaining this litigious nonsense. Judge Kaplan goes on to state that the case was frivolous and that these fee assessments should serve as a good deterrent in order to "better serve the purposes of the Copyright Act." That purpose is not to reward people who see a payday in the form of plainly Fair Use reporting. And we're not talking about pennies in legal fees, either.

Hence, the media outlets that were on the receiving end of the lawsuit are entitled to recover what may amount to hundreds of thousands of dollars in legal costs. Kanongataa's lawyers from New York—Yekaterina Tsyvkin and Richard Liebowitz—did not immediately respond for comment. The judge gave the media companies three weeks to say how much they think they should be awarded in costs associated with defending the lawsuit.

Big dollars, yes, but that's warranted to keep this sort of thing from regularly mucking up the court docket. Copyright's purpose isn't a get rich quick scheme.

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Filed Under: copyright, fair use, kali kanongataa, news, reporting

46 Comments

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hij (profile), 26 Jun 2017 @ 2:18pm

Bring the hammer down on the little guy
It would be nice if judges did this to the large corps that do this to individuals. Seems a bit one sided if the big guys get to screw over the little guys with impunity. Meanwhile Zillow gets to screw over students for transforming their photos into bombastic sarcasm posts.
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Anonymous Coward, 28 Jun 2017 @ 3:48am

Remind us again how copyright is broken and only protects creators.

Then you can tell the easter bunny story.
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Anonymous Coward, 28 Jun 2017 @ 4:25am

Reciprocity?
So, does this mean that anyone can now just show clips of the goals in a soccer game without having to worry about copyright?

I mean, it's only using about 20 seconds of a 90 minute stream of the game...
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Ninja (profile), 28 Jun 2017 @ 4:31am

Awesome way to screw your kid eh?

While I do think the guy should get some punishment for this I believe he should pay a few thousand at most. The stoopid lawyers should be the ones weighting the costs for their abysmal practice.
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Anonymous Coward, 28 Jun 2017 @ 5:24am

Took a look at the website for plaintiff's law firm. Interesting...it holds itself out as focusing on the enforcement of copyright, and does so on a contingency fee basis. Experience tells me that the assessment of blame should be directed at the lawyers, and not their client. They were the self-proclaimed experts and should bear the responsibility that flows from a clear lack of expertise.
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OldMugwump (profile), 28 Jun 2017 @ 5:54am

Fair is fair
Fairness requires treating everyone the same before the law.

Big or little.

This is a good ruling.
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Anonymous Coward, 28 Jun 2017 @ 6:27am

Re: Fair is fair
You are being unfairly dismissive of his point. He did not say that "this" was not a fair ruling, just that the "Hammer of Justice" is not swinging fairly in the full scope of things.
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Anonymous Coward, 28 Jun 2017 @ 6:34am

Re:
Disagree, completely.

You use a fool, you become a fool!

The idea that you can trust someone's expertise without any knowledge in the subject matter they pretend knowledge of leaves you vulnerable. If you are willing to be ignorant then you have no room for complaint.

Copyright law is not that hard to grasp and they were complete fools for trying to argue a clear case of fair use against a business where fair use is their bread and butter. The defense attorney's are laughing all the way to the bank!
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Stephen T. Stone (profile), 28 Jun 2017 @ 6:44am

Re: Re: Fair is fair
If you want fairness, grab a scalpel.

If you want to make a point, grab a hammer.
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Hugh Jasohl (profile), 28 Jun 2017 @ 6:47am

Re: Reciprocity?
Those soccer games are broadcast with all kinds of restrictions through transmission, and re-transmission with original licensing inherent. In this case, if you read the article, the person put no restrictions on his video and allowed anyone with a Facebook profile to view it. He later decided that he didn't like the large number of shares that it received and tried to claim they were private and non-shareable after the fact. You can't do that. Nice try making a straw-man to argue about though.
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Anonymous Coward, 28 Jun 2017 @ 7:13am

Yeah... except all it does effectively is stop those who aren't rich or businesses from defending their copyright.
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JoeCool (profile), 28 Jun 2017 @ 7:48am

Re:
Yeah, the lawyers sure as hell ain't paying those fees. It's left to the poor schmoe they tricked into letting them file this travesty. I certainly hope he at least got shysters who promised "no fee if you don't win" or he's stuck paying THEM, too!
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That Anonymous Coward (profile), 28 Jun 2017 @ 7:55am

"Copyright's purpose isn't a get rich quick scheme."
Its supposed to be a long con (see also that fucking ancient cartoon mouse).

The powers that be get cranky when these little upstarts go for the quick bucks, exposing some of the shady things happening.

Notice how the ENTIRE legal system finally went in on Prenda when they could no longer ignore the scam, yet hardly a blip about Warner/Chappel extorting cash for Happy Birthday. If you're the big fish, you pay a tiny little fine and its all fixed... If your Prenda you see who can throw who under the bus first, if you've been scamming for decades you repay the last couple victims & its fine.

Perhaps it is time to exert more pressure on the bars and other failed oversight systems to actually punish these sorts of stupid cases early and often. We have a glut of lawyers and so many are willing to be flexible to make a few bucks... because they know they face no real penalties if they keep their heads down. If we want better lawyers, we need to demand actual punishments and not face saving measures to protect the image of the system... the system is corrupt and rotten as long as it worries about its own image above of the damage being done by its protected cogs.
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Anonymous Coward, 28 Jun 2017 @ 8:23am

Re: Re: Reciprocity?
This is completely false. You don't have to explicitly claim copyright. Copyright is automatic. The ruling doesn't say that the Kanongataa isn't the legitimate owner of the copyright on the video. The fact that he posted it publicly on facebook doesn't put it in the public domain. The fact that he shared it publicly is important only because it means that the news outlets that reported on it were not showing clips from someone's private video, like Gawker did.
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Anonymous Coward, 28 Jun 2017 @ 8:31am

Re: "Copyright's purpose isn't a get rich quick scheme."
Well, Prenda did other things (as you of course know) like forging signatures and lying to judges. That's a bit worse than what happened with Happy Birthday.
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Anonymous Coward, 28 Jun 2017 @ 8:41am

Re: Bring the hammer down on the little guy
The legal system itself is broken if a lawsuit which is dismissed causes the defendants hundreds of thousands of dollars in legal fees. And this is true whether or not the plaintiff pays. (Of course, the figure is speculative at this point, since they haven't determined the amount yet.)
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Anonymous Coward, 28 Jun 2017 @ 8:44am

Can't wait to see insert_name_here come and applaud copyright law being properly enforced.
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Anonymous Coward, 28 Jun 2017 @ 9:12am

Re: Fair is fair

Fairness requires treating everyone the same before the law.

Yes, but despite what the supreme court has said, corporations are not people. It should be possible for people to have rights that corporations don't; equal treatment should only be required within a category (person, s-corp, LLC, etc.).
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Anonymous Coward, 28 Jun 2017 @ 9:18am

Re: Re:
I disagree with your disagreement. You might as well say that it's your own fault and that you have "no room for complaint" if your pipe leaks because your plumber made a mistake.

The law in this country is all but incomprehensible to non-lawyers - heck, even lawyers themselves will hire lawyers when they're a party to a case. An ordinary person might read the specific statute saying what copyright infringement is, and not know there's another section on fair use. They could read the law defining fair use, and STILL not know what the boundaries of fair use are (there's a somewhat subjective four-part test - and that's BEFORE you get to whatever precedents the courts have set in your circuit. Fair use is so tricky even copyright lawyers often aren't sure what is or isn't.) So you go to a lawyer to get advice on whether you have a case, and that lawyer has an ethical duty to give accurate advice to their client, and a separate ethical duty to not file meritless cases. If the lawsuit is frivolous and can be dismissed on its face, the one chiefly responsible should be the one who wrote and filed it - which is the attorney.
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Anonymous Coward, 28 Jun 2017 @ 9:43am

Kali Kanongataa needs to sue his lawyers
For malpractice, even the Judge said they should know better.
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Pixelation, 28 Jun 2017 @ 9:44am

Dumpster fire
It seems, on the surface, like this guy should be able to sue his lawyers for malpractice.
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Anonymous Coward, 28 Jun 2017 @ 10:04am

Re: Fair is fair
So - do tell, how exactly is this fair in the context of all court rulings no matter who is suing whom?
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Anonymous Coward, 28 Jun 2017 @ 10:06am

Re:
Video of a child dancing to a barely audible prince song ...
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Anonymous Coward, 28 Jun 2017 @ 10:08am

Re: Re: Reciprocity?
Wow - so all I need to do is claim copyright on my stuff and no one will steal it ... lol
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Anonymous Coward, 28 Jun 2017 @ 10:12am

Re: Re: "Copyright's purpose isn't a get rich quick scheme."
So lying to a court is bad?

Ok, do they actually hold the copyright to Happy Birthday?
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Thad, 28 Jun 2017 @ 10:17am

Re:

Remind us again how copyright is broken

Two stories up, dogg.

and only protects creators.

I am not aware of anybody here, either in the articles or the comments section, ever saying "copyright only protects creators."

Mostly it protects publishers and distributors.

Once again, I direct you two stories up.
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Thad, 28 Jun 2017 @ 10:18am

Re: Re: Re: Reciprocity?

The fact that he posted it publicly on facebook doesn't put it in the public domain.

Good thing nobody claimed that it did, then.
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Thad, 28 Jun 2017 @ 10:20am

Re:
No, what it does effectively is stop those who aren't rich or businesses from filing obviously frivolous copyright suits.
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Bergman (profile), 28 Jun 2017 @ 11:24am

Re: Re: Fair is fair
Corporations are not people, but they are made of people and the CEO is a people. One of the reasons CEOs get paid so much is that the buck stops there -- if someone goes to prison for setting a corporate policy that violates the law, the CEO is at the head of the line.
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Bergman (profile), 28 Jun 2017 @ 11:30am

Re: Re: Re: Reciprocity?
Your statement is just as completely false as Hugh's -- you both have an incomplete grasp of how copyright law works and why it works. Being partly wrong doesn't make you completely wrong of course, but since you claim that partial wrongness and complete wrongness are the same, then you too are completely wrong.

Kanongataa does own the copyright to his video. But he also LICENSED it to Facebook, allowing it to be viewed by other Facebook users and more importantly, to be shared by them.

He can't take back that license because doing so had different effects than he expected, even though the effects were explicitly spelled out in the contract he agreed to.

On top of that, news reports are one of the exceptions to copyright law, in the form of fair use. So even though he didn't license the news agencies to report on his video, it's irrelevant because they didn't violate his rights by doing so.
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That Anonymous Coward (profile), 28 Jun 2017 @ 11:55am

Re: Re: "Copyright's purpose isn't a get rich quick scheme."
Both held questionable copyrights, made representations about them that were misleading.

IIRC didn't Warner/Chapel's own evidence show dates that should have pushed it outside of copyright? There was an aha moment that my mind can't flesh all the way out.

There are so many examples in the law of things connected to what legislators think are 3rd rail issues, so they refuse to think about touching them.

It would be hella simple to fix the ADA law to stop the ADA extortion games offering a window for remediation of the problem before allowing a lawsuit. But to touch the ADA would set off so many people, so more businesses are shutting down & lives ruined because of a 1/4 inch variance in a threshold.

Copyright... yeah it exists solely for the corporate sponsors so there won't be any fixes even with the millions taken in by Prenda and other bad actors. Who cares about a few hundred thousand citizens, when someone might make a copy of that mouse and cause Disneyland to suddenly cease to exist?
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michael, 28 Jun 2017 @ 12:22pm

Re: Re: Re: Fair is fair
"if someone goes to prison for setting a corporate policy that violates the law, the CEO is at the head of the line."

I can think of exactly one time this happened, and it was because the CEO himself had created the policy (Enron).

Otherwise, the idea criminal accountability is part of the CEO's job is ridiculous. Clearly the world doesn't work the way you think it does.
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Thad, 28 Jun 2017 @ 12:27pm

Re: Re: Re: Fair is fair
Yeah -- the head of the line to get a golden parachute while somebody else takes the fall. Or, more likely, while nobody does.
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Anonymous Coward, 28 Jun 2017 @ 1:11pm

Re: Re: Re:
At one point, this was true. Finding information outside of the text of the law itself was difficult and time consuming. Now, on the other hand, it would have required at most ten minutes on google to find a summary of copyright law which, while not nearly sufficient to determine if he had a case, would be easily sufficient to determine that he did not. News reporting is the single, classic exception to copyright that is always brought up and he should have been able to find that easily.

In other words, almost every legal principle is such that there is a small area where you clearly have no case, a small area where you clearly have a case, and a very wide grey area where only lawyers can guess whether you have a case. This was not in the grey area.

Then again, I'm probably biased. I am of the opinion that anyone who goes to a lawyer without knowing the basics of his case should go die in a hole. After all, if you know nothing about your case then why would you think to go to a lawyer in the first place? That course of action implies they assume everything that annoys them is illegal (and subject to a lawsuit) by default, where all people with worth assume the opposite.
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Anonymous Coward, 28 Jun 2017 @ 1:42pm

Re: Re:
I take it you advocate becoming a subject matter expert before consulting with one. You set a high bar indeed for ordinary members of the public.
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Anonymous Coward, 28 Jun 2017 @ 1:45pm

Re: Re: Re:
Well stated...
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Mononymous Tim (profile), 28 Jun 2017 @ 4:13pm

Oops
Money grab fail, then backfire.
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Anonymous Coward, 28 Jun 2017 @ 6:10pm

Re: Re: Bring the hammer down on the little guy
That's literally called the "American Rule". It isn't like that everywhere. In the U.S. it is extremely unusual for a losing plaintiff to be declared "frivolous" and have to pay costs for the other side.

> Judge: "No reasonable lawyer with any familiarity with the law of copyright could have thought..."

Somebody should clue this guy to sue his lawyers for the damage of the judgment against him due to their (apparent) incompetent handling of the case. Serve all of them right.
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Anonymous Coward, 28 Jun 2017 @ 7:55pm

Re: Re: Re: Bring the hammer down on the little guy
crooked judge. was abc making money on ads forced upon viewers of that clip? if so, that's not fair use. that's business.
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Eldakka (profile), 29 Jun 2017 @ 12:24am

Re:
Depends on whether the lawyers advised it was a losing proposition, and their client (plaintiff) insisted they go ahead anyway.

If however, as is likely, the lawyers didn't proffer any advice that this outcome was possible, even likely, then I'd think he'd have a case against them.
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That One Guy (profile), 29 Jun 2017 @ 3:21am

Re: Re: Re: Re: Bring the hammer down on the little guy
Incorrect, the fact that someone might make money off of a use does not automatically bar it from being fair use. Were it otherwise then massive amounts of news would be impossible, as they couldn't use pretty much anything that they didn't own outright.
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Thad, 29 Jun 2017 @ 7:52am

Re: Re: Re: Re: Bring the hammer down on the little guy
That's one of the four prongs of fair use. Can you name the other three?
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Anonymous Coward, 29 Jun 2017 @ 2:30pm

Re: Re: Re: Re: Re: Bring the hammer down on the little guy
what exactly prevented abc not using the clip as mainly money making scheme? they still could have run without money making angle.
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Anonymous Coward, 29 Jun 2017 @ 2:41pm

Re: Re: Re: Re: Re: Bring the hammer down on the little guy
daniel morel's haiti earthquake photo was stolen by afp. they were as arrogant claiming fair use while making ton of money.
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That One Guy (profile), 29 Jun 2017 @ 3:22pm

Re: Re: Re: Re: Re: Re: Bring the hammer down on the little guy
I have no idea what you're talking about. What 'money making angle' are you talking about?
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Thad, 30 Jun 2017 @ 10:24am

Re: Re: Re: Re: Re: Re: Bring the hammer down on the little guy
In other words, "No."
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