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
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
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
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
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.