A brief update on a case I'd written about on my old pitiful blog, where you can read more if you're interested, about the City of Inglewood, California and its ill-fated attempt to sue a YouTube critic on the basis that videos of its City Council meetings were protected by copyright. It didn't go well, and will probably get worse for Inglewood's taxpayers.
The background is this: the City of Inglewood in California was mighty offended that someone would actually watch boring-as-hell videos of city council meetings, and then use short clips of the meetings to make his own YouTube videos criticizing Mayor James T. Butts (yes, I know, calm down). So, the city council scraped together a whole $595 to register some of the videos with the U.S. Copyright Office, along with a $50,000 retainer to hire Joanna Esty of Majesty Law to sue Joseph Teixeira, creator of the videos, for copyright infringement.
Teixeira moved to dismiss on the basis that California law did not authorize Inglewood to copyright its videos and, in any event, the videos were classic fair uses buttressed by the First Amendment. Pointing out that Inglewood specifically identified the URLs of the videos at issue, Teixeira argued that the court could consider them in a motion to dismiss, because they had been incorporated into the complaint. Usually, on a motion to dismiss, a defendant can't try to introduce evidence, and the court can only consider the words in the complaint itself.
Inglewood, true to form, argued that it was the City of Inglewood that was actually protecting the First Amendment by suing its citizen-critic, because without the ability to make money off of videos of boring-to-tears city council meetings, cities wouldn't be motivated to make such videos in the first place. This argument was as dumb as it was galling: California law prohibits cities from making a profit off of its public records. Inglewood also stalled, arguing that the court couldn't consider the videos at this stage because Teixeira had replaced the YouTube videos. The judge called their bluff, allowing Inglewood to provide copies of the original videos, which might demonstrate that the videos shouldn't be considered at this stage. When Inglewood couldn't find the original videos, the court indulged the City's bluff a little further, permitting a subpoena for the originals from YouTube. That subpoena — shockingly — demonstrated that the videos had never changed.
This evening, Inglewood's futile effort to delay the inevitable ended in a dismissal with prejudice. The rather lengthy order is here.
The court agreed with Teixeira almost uniformly, holding that the City of Inglewood cannot assert a copyright interest in its videos. The question of whether a state (or its political subdivisions) can establish a copyright is a function of state law, and California has not affirmatively granted such a right to its cities. Finding itself bound by a California state case, the court rejected Inglewood's arguments (the Supremacy Clause commands that all things be copyrightable!) as "unpersuasive" and "wholly without support." Even if they were protected by copyright, "given the barely creative nature of the City Council Videos, and their informational purpose, they enjoy very narrow copyright protection."
The court, perhaps sensing that Inglewood might, in filing an appeal, drag the case out over the question of whether a copyright interest exists at all, proceeded to a Fair Use analysis, and found that every factor of a Fair Use determination weighed in Teixeira's favor:
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 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. […] No person wishing to find out what occurred during a lengthy City Council meeting would be satisfied with viewing any of the Teixeira Videos.
In the end, it cost Inglewood's taxpayers a pretty penny and the number of people who saw Teixeira's videos increased by a factor of five. And it may cost them more: Teixeira's pro bono counsel has hinted that they will seek reimbursement of their attorney's fees. That could come either through the Copyright Act itself (which Eugene Volokh believes weighs in favor of an award of fees), or through Rule 11, which requires filings to be "well grounded in fact and […] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that […] not interposed for any improper purpose, such as to harass" and certainly applies to baseless copyright suits. If the complaint doesn't qualify, Inglewood's incoherent opposition to the motion to dismiss — which argued that Inglewood was actually protecting free speech by suing its critic — is fertile soil for Rule 11 sanctions.
And perhaps it won't be Inglewood's taxpayers who wind up footing the bill, and the politicos who green-lit this dip into the city treasury might wind up paying a political cost. Criticism was widespread: the Los Angeles Times spent ink covering the story and its editorial board hinted that Mayor Butts should resign if he suffered from acute thinnius skinnius, and suit was criticized by Eugene Volokh, the Annenberg Media Center, the First Amendment Coalition, TechDirt, CityWatchLA, the National Coalition Against Censorship, and so forth.
I do hope that Teixeira, ably represented by pro bono counsel from Davis Wright Tremaine, Dan Laidman, seeks his legal fees. Inglewood's lawsuit was quite clearly frivolous and designed to harass a critic into silence. In the absence of lawyers willing to take the risk that they might never be paid for their efforts, Inglewood's efforts might have been successful. And although it's unlikely — Mayor Butts won his last election by a wide margin — the elected officials who pursued this action should pay a price as well.
Edit: As an example of how articulate I am, I used the word "copywritten" in this post. I've replaced it with a word that is probably also wrong. As penance for my sins, I will not subject anyone to my bad Blog Posts for a month and a half. Thankfully, I will also credit myself time previously served.
Update (9/3/15): Teixeira is now seeking $128,000 in legal fees under the Copyright Act (17 U.S.C. § 505), which provides for attorney's fees at the court's discretion. Given that the court apparently stated its belief that the City of Inglewood was "just flatly wasting my time" in dragging the matter out, and was unequivocal in finding that the videos were a fair use, odds are pretty high that there will be an award.
Update (10/8/15): Teixeira has been awarded $117,741 in attorneys' fees, with the court finding that Inglewood's claims were "objectively unreasonable" and that the city's position that it could hold a protectable copyright in its videos "has been and remains simply wrong [….] The nature and purpose of Defendant’s videos should have given the City at least some pause and prompted it to conduct further research into the merits of its claims." Indeed, Inglewood's "most plausible purpose [in bringing the suit] was to stifle Defendant's political speech after he harshly criticized the City's elected officials."
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