The author of a listserv posting sued a fellow listserv member and his sister for copyright infringement and eight other claims after the content of the post was forwarded allegedly by e-mail. According to the facts of the case, Plaintiff, a California lawyer named Kenneth M. Stern, sent an e-mail to the Consumer Attorneys Association of Los Angeles (“CAALA”) over his apparent concern of overbilling by another firm in connection with some calculations he had them perform for his client.
Stern’s e-mail, posted on CAALA’s listserve, stated in its entirety: “Has anyone had a problem with White, Zuckerman . . . cpas including their economist employee Venita McMorris over billing or trying to churn the file?” According to Plaintiff’s facts, the listserv posting was then forwarded by fellow listserv member Defendant Robert Weinstein to his sister, co-Defendant Sara Weinstein, who was a client of White Zuckerman. Ms. Weinstein thereafter forwarded the e-mail to White Zuckerman.
Months after the other claims were tossed out by a motion to dismiss, the Defendants moved for summary judgment on the sole remaining claim, copyright infringement. U.S. District Court Judge Dolly M. Gee began the discussion portion of her opinion with a header in Chinese characters translated in an apt footnote which should have been a clue to her ruling that would follow: “‘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).” Indeed, she ruled that the 23 word post lacked sufficient creativity to qualify for copyright protection. The post “displays no creativity whatsoever — its content is dictated solely by functional considerations. Plaintiff merely requested factual information . . . .” [Court’s Opinion here] [Google version of opinion here]
The Court also ruled that Defendants’ e-mails were a fair use as they were “highly transformative.” According to the Court, Defendants’ e-mails, even if they were sent, served to alert the company about the fact of the post rather than serving the function intended by it, namely, to seek from fellow listserv members information in response to the question posed. As such, the e-mails were commentary or news reporting and thus were fair use.
Interestingly, the Court also stated: “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.”
Plaintiff not only lost the motion over his remaining claim, he also exposed himself to paying Defendants’ legal fees. “The problem with Plaintiff’s copyright claim lies in Defendants’ obvious fair-use defense. A reasonable person, particularly one who happens to be an attorney, would not have pursued such folderol. Plaintiff’s decision to proceed with this patently meritless cause of action supports a fee award.” (Note: In case you too were flummoxed by the word “folderol” it means: trivial or nonsensical fuss, nonsense, or a useless trifle.)
Plaintiff’s claims of damage did nothing to help him. “Implausible are Plaintiff’s averments of emotional distress and stress-related ailments arising from Defendants’ alleged infringement. Plaintiff offers almost no evidence of these maladies. He states, incredibly, that ‘[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.'”
The Court went further to describe Plaintiff’s complaint as “absurd” and his claim to damages and fees as “preposterous” and “outlandish,” evidence of bad faith, in the Court’s view, supporting an award of attorneys’ fees to Defendants, each represented by separate counsel. Judge Gee was nominated to the federal bench in 2009 by Barack Obama and is the first Chinese-American woman to serve as a United States Federal District Court judge.