City Tries To Silence YouTube Critic By Suing For Copyright Infringement
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:
- James Butts Accuses The City Clerk Of Lying About Election Fraud
- James T. Butts Jr Misleads the Public About His Voter Registration
- James T Butts Jr Alibi or apology
- James Butts exploits the murder of Fredrick Martin for his own political benefit
- Mayor James Butts Lies About Being a Hypocrite
- Mayor James T. Butts Jr Lies, Hiding Dangerous Traffic Problems After Forum Events
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.
Re: Millionaire MM now asks YOU to subsidize his lying!
"By the way, DE FACTO, he's wrong on defamation law too." Hmm. Gonna agree with the federal judge who concluded otherwise, which is why (ahem) Shiva Ayyadurai had to appeal. I wonder how much Shiva Ayyadurai paid in lawyers' fees to have a link added to an article.
So there's an objectively falsifiable, legally-cognizable definition of "hate group"? What about "hate speech"?
Re: Re: Re: Good Luck Guys
Don't count on Techdirt being able to recover attorneys' fees, even if they're able to get the court to dismiss the action. Federal courts will often, if they can, dismiss using federal procedure, then rule that the anti-SLAPP motion is moot because the case has been dismissed.
So if you haven't donated to the defense fund because you hope that Techdirt will win attorneys' fees, donate.
Re: Reputation Management
The "one of the world's first" email systems line isn't a one-time slip-up. Ayyadurai's companies and websites have used that type of language for a long time. I've collected a few of them here: https://twitter.com/adamsteinbaugh/status/836223767974117380
Brittain and the FTC
Brittain got less than a wrist slap. The FTC has apparently never voted on whether or not to enter the consent agreement, even though it's been almost a year since it was first proposed.
In other words, the FTC raised their ruler to slap Brittain's wrists, and then put the ruler down and wandered off.
Guttormson apparently donated the fruits of her last legal defense fund, as she had promised, when Miller dismissed his initial suit following widespread criticism and attention to the matter.
Now that the attention (and defense fund) has faded, he's again harassing Guttormson with the threat of vexatious, frivolous litigation.
Guttormson has a second defense fund here.
Unless SCOTUS takes it (which is... unlikely) or Washington's Supreme Court agrees to rehear it (also unlikely), ain't nowhere left to appeal.
Being optimistically pedantic here, but Inglewood didn't necessarily spend $50,000 -- they signed a retainer giving the attorney that amount, but that's for her firm to bill upon. Perhaps they believed that there was a decent chance this would go through substantial motion practice, so they needed a big warchest to draw upon. I think it's fairly clear that's not going to happen.
So, if the attorney bills less than $50k on this case, Inglewood should get the balance refunded to them. And if we're judging the quality of Inglewood's opposition to the motions to strike and dismiss, Inglewood should get about... oh, I'd say, $50,000 back.
That said, if Teixeira seeks his own attorney's fees (and he should), I suspect they'll be significant, and the total loss to Inglewood's citizens may be substantially more than $50,000.
Re: Bad faith argument
The city might be right about the judicial notice issue, but I doubt it: they make a conclusory argument that there's some dispute about their authenticity, but they linked to the bloody videos in the complaint. In any event, I don't think it makes much of a difference: the city admits in its opposition that the videos contain added "derogatory" commentary. That's probably enough for the judge to toss the case even without taking judicial notice of the videos.
No -- you can register a copyright within three months of the first publication and still qualify for statutory damages. But the city didn't even come close to doing that.
Re: I thought this site was all about Free Speech
You're right: he doesn't have to answer to a YouTube video he thinks is dumb. But the only person here who has to answer is the defendant, because Miller's dragging her into court.
Re: They haven't repealed their Anti-SLAPP law
Unfortunately, Arizona's anti-SLAPP statute is limited to statements made to the government, and only some statements.
Someone managed to save Miller's responsive video, which was uploaded before the lawsuit was filed and (I believe) has since been deleted.
The most interesting part, to me, is that he's accusing the woman of having engaged in "criminal activities" and asserts that he's going to "prosecute" her. Clearly hyperbolic (except to the extent that it might imply that she 'hacked' his account), but that's exactly what protects her speech.
I think Franken's too late, but the FBI could have helped negate much of the controversy of revenge porn by acting sooner. 2257's regulations re: record-keeping -- assuming they're applicable to dedicated revenge porn sites -- are as close to a silver bullet as they come, because none of these sites kept anything approximating appropriate 2257 records. And the sole agency authorized to enforce 2257? The FBI.
The FBI also could have done something about Craig Brittain's "IsAnybodyDown?" and "David Blade" extortion scam, which a number of people (including Ken White) have pointed out is wire fraud, among a host of other things. And if the FBI wants an easy way to quickly show Sen. Franklin that they're serious about the issue (in addition to the acts noted above), Craig Brittain is an easy and very well-known target. The federal statutes of limitations on both extortion and wire fraud are five years.
But if the FBI/DOJ *really* wanted to have an impact, the last major revenge porn site -- which dwarfs any of those that preceded it -- is still active. Its operators might be hard to pick up, but it's not impossible, and the DOJ knows who they are.
One minor correction -- it was Bollaert's counsel (not the prosecutors) who brought up Brittain's lack of punishment.
Bollaert was trying to make two related arguments with this: (1) that he believed his conduct to have been lawful (which would be a mitigating factor in sentencing) because two people (Brittain and Hunter Moore) had been all over the national news boasting about their sites without being charged; and (2) that Brittain's slap on the wrist from the FTC and Moore's potential sentence were comparable cases that the judge should use in determining what sentence Bollaert should get (i.e., probation or a few years' incarceration, but nowhere near the maximum.)
One note: the court never found the law unconstitutional. Rather, before there was any motion practice at all, the state's attorney agreed that the law was probably unenforceable and negotiated a stay while the legislature re-works the law. Once the new iteration is passed, the plaintiffs will have the option of continuing their case, at which point the court will be able to proceed with reviewing the statute.
Brittain's "I'm just interested in holding a big media company like Google accountable" is a facade so that he can try to knock out links critical of him without running the risk that the site's owners will ever find out. He won't put his money where his ever-running mouth is.
If he sent a frivolous DMCA notice to me or my host, I'd sue in a heartbeat.
The site does, in fact, have an actual revenge porn forum -- titled "Revenge Lovers" -- distinct from its seedy "STD carriers" section. It doesn't have many people posted there quite yet, but I will note that a police report posted *on the site* indicates that the victim is under the age of 18 in the photos. Revenge child porn: a brave new frontier Breitenstein's site is exploring.
Also, that "Sharon Eakins" who claimed to be my "landlord"? Turns out "Eakins" is also the maiden surname of one of Breitenstein's relatives. Purely coincidental, I'm sure.
And lastly, Breitenstein changed his Facebook profile name to "Dzianis Mohamed" to respond to Women Against Revenge Porn.
ComplaintsBureau is totally real. Totally.
Read my comment in response to the post. The guy who runs that site (or someone working with him) apparently creates fake reviews. He found out I was going to be writing about his "revenge lovers" (aka revenge porn) section. Lo and behold, a complaint from my "landlord" appears a few days later accusing me of raping children, trashing my apartment, and bailing on the rent. And, shockingly, the "landlord" has the same last name as one of the site owner's relatives.
I'm by no means a perfect person and have made plenty of mistakes in the past, and will likely do some things in the future that I'll later regret. There's plenty to criticize me for, but this ain't one of them.
Also, the First Amendment has nothing to do with whether you can comment on a private site. Given your interest in being a "digger" into my background, your unclear English, and your lack of basic understanding of what the First Amendment means, I frankly wouldn't be surprised if you were affiliated with Roca.
Re: Is it possible...
Doubtful. I've exchanged a number of emails with their principal, who indicated that he knew that the motion for a preliminary injunction (against PissedConsumer) was a long shot, but felt it was necessary to try to force some type of policy change with respect to the CDA. That was my takeaway from the exchange, anyway. So I think they get that their cases may be long-shots, but think they have SOME chance of success, however remote.
Or they're just making some kind of stand which is unlikely to convince anyone anywhere that the CDA should be changed.