from the a-disaster-in-the-making dept
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.
Filed Under: commentary, copyright, free speech, inglewood, james butts, joanna esty, joseph teixeira
Companies: majesty law group
