Is Forwarding A Single Sentence Email From A Mailing List Infringement?

Copyright

from the thankfully,-no dept

We’ve noted how copyright gets weird when you realize that everything that computers do is about making copies, and it can lead to some bizarre lawsuits. Eric Johnson points us to a writeup by Eugene Volokh of an attempt by a lawyer (of course) named Kenneth Stern, who argued that forwarding a single 23-word sentence that he had sent out to a listserv email list, constituted copyright infringement. As Johnson notes, the full sentence, at 150 characters, was just slightly larger than a Twitter message:

Has anyone had a problem with White, Zuckerman . . . cpas including their economist employee Venita McMorris over billing or trying to churn the file?

Now, the reason we can be comfortable reposting that, without fear of dealing with a copyright infringement lawsuit from Kenneth Stern is because the court shot down the lawsuit, noting both that the sentence was not covered by copyright, and even if it were, forwarding it to a mailing list would be fair use. Oh, and the court didn’t just shoot it down. It said that Stern’s lawsuit was frivolous… to the point of saying that he may need to pay attorney’s fees for the people he sued.

Plaintiff asserts that he holds a valid copyright and that Defendants’ acts — copying and distributing his listserv post — constituted both copyright infringement and contributory infringement….

[T]he copyrightability of a very short textual work — be it word, phrase, sentence, or stanza — depends on the presence of creativity. The opening sentence of a poem may contain sufficient creativity to warrant copyright protection whereas a more prosaic sentence of similar length may not. For instance, the opening stanza/sentence of the poem Jabberwocky contains, coincidentally, the same number of words — 23 — as Plaintiff’s listserv post: ” ‘Twas brillig, and the slithy toves / Did gyre and gimble in the wabe; / All mimsy were the borogoves, / And the mome raths outgrabe.” The utter creativity of this “greatest of all nonsense poems in English” prompted one court to suggest that even its first line would be entitled to copyright protection.

Plaintiff?s listserv post, in contrast, displays no creativity whatsoever — its content is dictated solely by functional considerations. Plaintiff merely requested factual information: whether anyone on the listserv had a bad experience with a certain forensic accounting firm — and one employee in particular — regarding overbilling and the churning of client files. His single sentence conveys precisely this idea and no more. As Plaintiff’s expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection….

Separately, the fair use argument strikes me as quite interesting in a few ways as well. For example, in discussing the four prongs, the court finds that the forwarding of the email (which was sent to the law firm that Stern was asking about) was “transformative.” Now, we often hear from copyright defenders who claim that to be transformative, you have to totally change the work itself, but the court explains that’s not the case:

Defendants’ use of Plaintiff?s sentence is highly transformative. Plaintiff’s listserv post sought specific information about a forensic accounting firm’s questionable business tactics. Defendants did not seek any information at all; their purpose was to alert the company about Plaintiff’s post. By forwarding the post in e-mails, they conveyed the fact of the post rather than its underlying message. Defendants’ e-mails thus had a substantially different purpose than the post itself, a fact which weighs heavily in favor of fair use.

Filed Under: copyright, email, forwarding