Remember the City of Inglewood, California? The city where mayor James Butts was so annoyed that an online critic, Joseph Teixeira, had made some mocking videos using clips from city council meetings, that he allotted $50,000 of taxpayer money to fund a lawyer to file an absolutely bogus copyright lawsuit against Teixeira? This lawsuit alleged that Teixeira somehow infringed on the copyright of the City by adding commentary to these videos. There was so much wrong with the lawsuit that it was a total embarrassment for the city and the lawyer, Joanna Esty, who claims to be a "seasoned" lawyer with expertise in intellectual property law.
The court did not take long in dismissing the lawsuit and benchslapping the city for filing the lawsuit in the first place. The court allowed Teixeira to seek legal fees, and while the city pushed back, the court has now told the city to pay another $117,741 in legal fees to Teixeira's lawyers, noting that the entire lawsuit was "objectively unreasonable."
Judge Michael Fitzgerald has another opportunity to smack Inglewood around for filing such a bogus lawsuit in the first place, and notes that it's pretty damn clear that the entire purpose behind this lawsuit was to silence a critic, not because of any legitimate belief that a copyright was being infringed.
It is, of course, impossible to know with certainty what prompted the City to
bring this lawsuit. The City avers that its only motivation was to enforce the rights it
believed it had in the videos.... But the Court is not persuaded. As
Defendant rightly notes, the main justification of the Copyright Act is “the protection
of the commercial interest of the author.”... California law, however, prohibits the City from charging anything more
than the “direct costs of duplication” when providing public records.... Pecuniary gain, therefore, could not have been the motivating factor in filing this
action. As the Court made clear at the hearing, the City’s most plausible purpose was
to stifle Defendant’s political speech after he harshly criticized the City’s elected
officials. As such, this factor weighs heavily in favor of an attorneys’ fees award.
At the hearing, counsel for Plaintiff implied that this Court was basing its ruling
on the reaction of the press or the academic community. The Court does not do so.
The judge also notes that he's worried that, if left unpunished, Inglewood or other cities might do this again:
The Court is also persuaded that a fee award is necessary to deter future
meritless litigations of this kind. The City argues that the attorneys’ fees “will have
absolutely no deterrent effect” on a municipality that intends to file no future copyright
lawsuits.... Even if true, the Court notes that deterrence is a broad value
that is not limited to the individual litigants here. Indeed, a reasonable award of fees
will serve to deter other entities, whether public or private, that contemplate bringing
unreasonable suits to pressure an individual into abandoning protected activity.
So, between the original $50,000 allotted and this $117,741, that's an awful lot of taxpayer money being spent just to try to stifle someone's First Amendment rights. It kind of makes you wonder what they're doing with the rest of the taxpayer funds they have access to.
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.
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.
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.
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.
