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Posted on Techdirt - 3 June 2015 @ 9:33am

City Tries To Silence YouTube Critic By Suing For Copyright Infringement

from the taxpayer-money-at-work dept

This is a pretty stunning example of censorship by copyright -- from a literal government.

Joseph Teixeira is a critic of the mayor of Inglewood, California, James Butts. As is common among people with more than a passing interest in local politics, Teixeira takes clips of videos of city council meetings -- which are available on YouTube -- and posts them to YouTube, overlaying them with his own commentary and words. Teixeira, who goes by the name "Dehol Trouth" (get it?), runs a website called "Anybody But James Butts For Anything" and, when he's not caustically criticizing Mayor Butts, likes to make fun of the way he plays with his tie. Here's one of the videos:

Whether Teixeira's criticism has any merit, I don't know. He comes across as articulate and well-researched, lacking an "I attend every city council meeting to rant about chemtrails" feel. I do know this: it's awfully hard for a public official to sue for defamation.

But of course Mayor Butts isn't afraid of a few YouTube videos viewed by a couple hundred people -- people who probably don't even live in Inglewood and were just searching for a Snoop Dogg video. After all, Mayor Butts, won his last election by the largest margin in the city's history. So the best thing to do would be to ignore the guy, right?

Of course it would. But that's not what Mayor Butts and his fellow councilcritters did. Rather, they enlisted the resources of the city they govern to sue Teixeira for copyright infringement. Here's the complaint. In its path to censoring Teixeira, the City of Inglewood makes some pretty surprising false statements, on top of being completely and utterly wrong on the law.

Teixeira moved to dismiss the lawsuit with two arguments. First, he argues that the city can't even own a copyright because California law -- which requires the city to provide a copy of the video at only the cost of reproducing it to anyone who asks -- doesn't permit a city to hold a copyright in this kind of record. And that's what this is: a record of a city council meeting. Second, Teixeira argues that if there is a copyright interest, this is a classic fair use. After all, he's a citizen making fifteen-minute videos that include snippets of meetings that last up to four hours, and doing so to criticize his elected officials. On top of that, he's not getting any money for it. It's hard to think of a clearer example of fair use.

The City of Inglewood, represented by a seasoned IP litigation attorney who should really know better, responded with one of the most transparently-wrong briefings I've ever encountered -- and I read pro se ramblings as a hobby.

First, Inglewood argues that it can have a copyright interest because that case cited by Teixeira was argued by the same international law firm that represents Teixeira now, and something about the Supremacy Clause. Second, Inglewood states -- with a straight face -- that Teixeira's 15-minute videos appropriate the entire "work"... which is usually about four hours long. Worse, according to Inglewood, adding criticism over clips of these videos doesn't transform them from being what they were (boring bloody videos of city council meetings documenting people who probably wish they were playing Candy Crush, and would be if the meeting weren't on video) into something else, like pointed political criticism. Plus, Teixeira is somehow using the video for a "commercial" purpose, although Inglewood just sort of states this without any explanation whatsoever.


Defendant merely republished substantially all of Plaintiff's unaltered videotapes of its Council meetings, with Defendant's derogatory comments overlaid on top. This is not transformative in the least. [...] Transformativeness is not about a defendant's subjective intent; it is about 'add[ing] something new.'

A lawyer facing a poor set of facts might be forgiven for arguing nonsense, and this would perhaps not be as surprising if it had been left in its native format (crayon). But Inglewood's position goes from wrong to holy-crap-do-you-even-believe-what-you-are-writing-or-is-this-a-practical-joke-am-I-on-TV-hi-mom when it comes to identifying the real threat to free speech:

What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.

Yes, that's right: if the city can't enforce a copyright over videos it has to give away for only the cost of putting them onto a CD, the city won't have any economic incentive to record its own meetings, which it already distributes for free on the internet. That -- and not a government demanding that a citizen pay them money after insulting them -- is the real threat to free speech here.

The six videos have each been seen only about 300 times. To put this in perspective, it cost Inglewood taxpayers $400 just to file the lawsuit. Add in the $595 it cost the city to register the copyrights on these videos -- some of which date back to 2011 -- and that means this suit has cost about fifty-five cents for every time one of these videos has been viewed. And that's before attorneys' fees.

Let's reduce that ratio: here are the six videos. Give them a view:

Perhaps someone should find out, exactly, how much this frivolous, thin-skinned lawsuit has cost Inglewood's taxpayers. I know just the man for the job. Or you could email Mayor Butts and ask him yourself. In any event, this lawsuit is enough to make one think that this Teixeira character might be on to something: these officials are not deserving of the votes of the people they represent.

Reposted from Adam Steinbaugh's blog.

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Posted on Techdirt - 28 September 2013 @ 12:00pm

Adam Steinbaugh's Favorite Techdirt Posts Of The Week

from the streisand-effecting dept

Hi.* I write about free speech and the internet on a poorly-named blog. That means I mostly write about revenge porn, Prenda, and vexatious trainwrecks.

The thing I like most about Techdirt is its commitment to covering stories at the same intersection: free speech and technology. Often, these stories involve rights owners overzealously seeking to protect an interest that isn't really being harmed. The predictable result is that the rights owner comes to its senses and backs down, but only after earning a new reputation: being wrong and a censorious thug. Thankfully, Techdirt is here to document and further these hard lessons in the Streisand Effect.

And so it was with This Charming Charlie, a mashup of the misanthropic lyrics of The Smiths and the aw-shucks renderings of Charles Schultz. The pairing was a hit. Of course, in swept Universal Music Publishing Group to pull the football away, leaving DMCA takedown notices in its wake. The complaint? That Charming Charlie was infringing upon the copyright in the lyrics of The Smiths by using lyrical fragments. Perhaps Universal wants to keep the lyrics intact and in full, or maybe they prefer to leave sleeping dogs lie, as the lyrics utilized by Charming Charlie aren't all that hard to find.

Whatever their rationale, it's dubious that Charming Charlie was impacting sales of The Smiths records, except perhaps to increase them as nostalgic Charming Charlie readers reminisce, or as new audiences are introduced to Morrisey's pre-emo complaints. While there is a certain argument to be made that Universal had a colorable copyright claim -- although it's not an argument I agree with -- the risk to Universal's reputation was more than any possible reward, statutory damages notwithstanding. Record labels don't earn much goodwill among artists, after all, by threatening artists. Fortunately, after intervention by Booth Sweet, perhaps some consideration of Fair Use, and some negative attention from the LA Times, Universal backed down.

Of course, the Charming Charlie episode wasn't intended to silence a critic, but instead a misguided attempt to protect intellectual property rights. It's even more disastrous when you use the DMCA to target speech. Upset people are quoting your speech and criticizing it as racist? Bring in the DMCA! And, while you're at it, unnecessarily reveal your censorious justification: "Your hosting customer [...] decided to embarrass Oliver Janssens in the worst and most effective way - by words out of his own mouth." And so shall ye conclude every prayer to Her Highness Streisand whenever ye shall invoke her Mysterious Effect.

Meanwhile, in Russia, recent legislation prohibiting material which would promote the dreaded homosexual lifestyle to children (that, after all, is the goal of gay rights activists: making sure that children, and not society as a whole, think that they're people deserving of equal rights and basic human respect) has finally found some material targeting children to censor. Except that the intended audience isn't children at all, because it's a satire intended to mock the legislative windmill tilting. As a result of attempting to suppress satire, greater attention is paid to the work as it spreads on non-Russian sites, and the target audience is reached. So, please, Russia, continue to use censorship to broadcast the messages you dislike.

British airliner EasyJet learned a similar lesson this week when it attempted to boot a passenger over a critical tweet. Of course, EasyJet -- a private company -- likely has the legal right to only accept passengers that don't criticize it, but is it worth it? While the company is apparently efficient enough to track critical tweets, identify the passenger, and communicate this grave threat to its reputation to employees at the gate, it lacked the foresight to realize that someone who tweets criticism will probably also tweet more irately when the airline overreacts to said criticism. The best way to salvage a bruised reputation is to stop doing things that hurt your reputation, like intimidating critics. It carries no reward and carries only higher costs.

Finally, in a different vein, a patent troll got a judicial sham-wow cleaning over its sham company, whose "director of business development" was really a landlord overseeing an "office" consisting of a windowless "closet" in East Texas. Why? Because patent trolls love to litigate in East Texas, where statistics suggest they have a significantly greater chance of success. So, if you just need to establish jurisdiction in the eastern district of Texas, do it cheaply. But, as Prenda is learning (and, yes, I'm giving the benefit of the doubt and assuming Prenda has learned something), make sure the owners of your intellectual property can't be perceived as a sham.

*("Hi"? That's your catchy introduction? Shouldn't you be learning how to tie your shoes or something?)

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