

A gem of a legal opinion spanking a lawyer for a frivolous copyright claim - grellas
http://cdn.volokh.com/wp/wp-content/uploads/2011/03/sternvdoes.pdf

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grellas
This is for law buffs (30-page decision).

It concerns an attorney who had hired a forensic firm to support his
litigation matter and who felt they had overbilled and/or churned the matter.
He asked a one-sentence question on a listserv forum about whether anyone else
had had a bad experience with the firm. One person forwarded the question to
his spouse and the spouse forwarded it to the firm whose services were being
questioned. The lawyer then went to the U.S. Copyright Office and, believe it
or not, registered his one-sentence inquiry as a copyright and then sued the
parties who had forwarded it for infringement!

For those interested (and I realize this is not a matter of general interest):

1\. The case documents the absurd lengths to which some people, and especially
a certain type of lawyer, will go to bully and intimidate through litigation.

2\. The opinion itself is beautifully analyzed and written and contains a very
informative discussion of what sort of short phrase is or is not copyrightable
and of what the standards are for fair use (it is legal technical stuff but
quite understandable).

3\. The judge has some priceless jabs in the decision, e.g., footnote 7, where
she considered the lawyer's point whether a one-sentence line from Shakespeare
("to be or not to be", from Hamlet) might have been copyrightable and retorted
that the better inquiry here might have been about _Much Ado About Nothing_.

The patient will be well rewarded in reading through this one (you can skip or
skim past parts that are not of general interest, e.g., the legal standard for
summary judgment).

Bottom line: after 2 years of very expensive litigation, the offending lawyer
is about to get socked with a massive attorney fee award that the judge
already decided he will pay "for pursuing such folderol," leaving only the
amount to be determined.

~~~
flipbrad
The fool paid $750 to register (an invalid) copyright in a listserv one-liner!
Amazing, even if you don't consider the hundreds of thousands of dollars
expended on this lawsuit ($70,000 claimed by the defendants, and I assume he'd
claim something similar in costs if he was entitled to them).

First time I've seen judgements with a heading that is subtitled - in chinese
- with a Sun Tzu quotation! It's at p5, and says (according to the translating
footnote): “He will win who knows when to fight and when not to fight.” Sun
Tzu, The Art of War 32-33 (Lionel Giles trans., Ulysses Press 2007)

Even more wonderful is the complaint - from a lawyer! - that the alleged
copyright infringement caused medical harm: "[i]n having to deal with the
violation of my copyright, I have experienced aggravation of the then
arthritis in my right hip, which resulted in excess pain in the hip and leg
and a decrease in the range of motion in my leg and hip."

~~~
ctdonath
To the medical claim, the judge retorts with the quote "...which really boils
down to ‘hurt feelings’". Heh.

The Chinese quotation was startling. Having read the judgement, methinks I'm
allowed to copy it.

Overall the entire opinion impresses me both with the comprehensive wit and
precision applied to eviscerate the claim, and with the sobering observation
that current judicial practice calls for a 30-page comprehensive opinion
required to reach the conclusion when "you idiot, get out of my courtroom"
should have been sufficient.

~~~
anigbrowl
In fairness, the thicket of citations and explanations are more a reflection
of the way the plaintiff set up all sorts of procedural fallbacks and
strategic maneuvers. Near the end the judge complains that the case could have
been resolved quickly at the outset if the plaintiff hadn't bent over
backwards to conceal his 'copyrighted' email as if it were something of
enormous importance.

I suspect that as soon as he realized the email had been copied, it dawned on
him that he would now have a reputation for casually disparaging people in
public which would severely undermine his legal career both by word of mouth
and in more formal ways. Deciding that the best defense was a good offense, he
launched this absurd suit against the person who brought his loose talk to
light. I feel like he'd have been reporting it to his local bar, and asking
the accounting company he disparaged if they would settle or accept
arbitration.

I wonder if he will face disciplinary sanctions on top of his courtroom
humiliation? His reputation is already shot, perhaps his whole career. Note to
self: reread this next time you feel cocky.

(IANAL)

~~~
flipbrad
The Streisand Effect should be part of every law student's education. This
attorney has received this lesson far too late in his (now stunted) career.

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tzs
When reading this, be aware it is a ruling on a motion by the defendant for a
summary judgement. Informally, the defendant is essentially saying "even if
every fact the plaintiff claims is true, he has no case".

That's why the court says this: "In setting forth the facts underlying this
dispute, the Court draws exclusively from Plaintiff’s version of events,
resolving all disputed facts in Plaintiff’s favor and assuming without
deciding that Defendants’ evidentiary objections are to be overruled". If one
misses that it is a summary judgement motion, it might look like the court is
unfairly favoring plaintiff.

Edit: also note that the $750 fee the plaintiff paid to register his copyright
is not normal. Copyright registration is normally $35 dollars. That's what you
would pay as a US author, registering your work before publication so that you
can recover damages from US infringers. (Foreign authors do not have to
register to recover damages from US infringers in US courts, which is why this
registration requirement does not violate US obligations under the Berne
Convention).

The only $750 registration I see on the copyright office's fee schedule is for
registration with expedited processing. That generally means plaintiff fucked
up. :-)

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Andrew_Quentin
This is proof, if any was needed, that judges and the law is often quite
reasonable.

~~~
shasta
What?? This patently frivolous litigation went on for TWO YEARS and cost over
a HUNDRED THOUSAND DOLLARS and you think this is proof that the legal system
is reasonable?

~~~
epoxyhockey
D. 1. c. ii.: Plaintiff’s Delay In Turning Over His Listserv Post

 _This case easily could have been resolved on a motion to dismiss had
Plaintiff disclosed the content of his listserv post at the outset. By
withholding disclosure of this information until August 2010 (see RW Mot.,
Farrell Decl. 2), Plaintiff substantially prolonged this litigation._

~~~
isleyaardvark
How can a plaintiff delay disclosing something like that to the defendants or
the court for so long?

------
Davey
I like the snide remarks from Public Citizen when they are pursuing CDA stuff.
[http://pubcit.typepad.com/clpblog/2011/02/javelin-
marketing-...](http://pubcit.typepad.com/clpblog/2011/02/javelin-marketing-
seeks-to-suppress-criticism-of-its-insurance-leads-sales.html)

I love how he says in his letter "even assuming that your letter is
sufficiently original to be copyrightable, and that you register the
copyright, the posting of your letter will be fair use and hence not
actionable"

------
fourply
Good stuff. Now if we could only get some similar opinions in Righthaven
copyright troll cases, we'd be making some progress!

------
jcnnghm
This is my favorite part, and could be significant in the future as a citation
supporting a broad fair use of published online comments, regardless of ToS.

 _Each of the four factors either support Defendants’ fair use defense or are
neutral. This is unsurprising. In an age of blogs, listservs, and other online
fora, a person’s short comment in cyberspace is frequently quoted in its
entirety as others reply or forward it elsewhere. It would be strange,
dangerous even, if every such quotation subjected the copier to liability and
a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to
kill a mosquito; they carry the same attendant risk of collateral damage by
chilling free speech. A free and vibrant democracy depends upon the unfettered
exchange of ideas._

