Forwarding a Sentence-Long Message from a Listserv = Copyright Infringement?

So argued Kenneth M. Stern, a California lawyer; no dice, said the district court in Stern v. Does (C.D. Cal., decided Feb. 10, 2011 but just now made available on Westlaw). No dice, said the court, concluding that the message lacked the modicum of creativity required for copyright protection — because it was so short and dictated by functional considerations — and that the copying was a fair use. Both conclusions seem right to me, though the fair use conclusion is especially clear, given the utter lack of any likely effect on the value of plaintiff’s work.

In fact, the court said that the plaintiff’s claims were frivolous enough to warrant requiring plaintiff to pay attorneys’ fees — a remedy that the Copyright Act allows. (The court concluded that the defendants’ request for fees were insufficiently specific to support an immediate award, but allowed the defendants to refile their request.) The plaintiff is appealing.

Here’s an excerpt from the case, though if you’re interested in the court’s reasoning you should read the whole thing:

Plaintiff is an attorney. In September 2006, Plaintiff retained the forensic accounting firm White, Zuckerman, Warsavsky, Luna, Wolf & Hunt L.L.P. (“White Zuckerman”) to perform a mathematical calculation on behalf of one of his clients. In March 2007, after receiving a bill from White Zuckerman for this work, Plaintiff became concerned that the billed hours were excessive and that White Zuckerman had been churning his client’s file.

On March 26, 2007, Plaintiff sent an e-mail to the Consumer Attorneys Association of Los Angeles (“CAALA”) listserv, which stated in its entirety as follows: “Has anyone had a problem with White, Zuckerman … cpas including their economist employee Venita McMorris over billing or trying to churn the file?” This statement — the subject of Plaintiff’s copyright infringement claim — was posted on the CAALA listserv.

At the time, both Plaintiff and Defendant Robert Weinstein were members of the CAALA listserv. Robert Weinstein accessed the CAALA listserv e-mails containing Plaintiff’s writing, which he forwarded in an e-mail to his sister, Defendant Sara Weinstein, who was a client of White Zuckerman. Sara Weinstein then forwarded the e-mail containing Plaintiff’s writing to White Zuckerman…

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….

[The court then went on to conclude that, even if the plaintiff’s work is protected by copyright, defendant’s use is fair.]

1. Purpose And Character Of Use …. The first fair use factor requires consideration of the purpose and character of the allegedly infringing use. This inquiry’s “central purpose” is to determine whether and to what extent the challenged work is “transformative.” A work is “transformative” when it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” If, on the other hand, the work merely “supersede[s] the use of the original,” then “the use is likely not a fair use.” …

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. See Perfect 10, 487 F.3d at 721-22 (“[E]ven making an exact copy of a work may be transformative so long as the copy serves a different function than the original work.”) ….

Equally important is the non-commercial nature of Defendants’ use. There is no evidence that Defendants stood to profit in any manner from their reproduction of Plaintiff’s listserv post, let alone evidence that they intended to commercially exploit it. Plaintiff alleges that Defendant Robert Weinstein and Sara Weinstein transmitted his listserv post to White Zuckerman to enhance their respective business relationships with the forensic accounting firm. Plaintiff fails to identify evidence supporting this allegation.

Regardless, even if true, the allegation does not undermine a finding of fair use. As discussed above, it was not Plaintiff’s particular form of expression that would have enhanced Defendants’ business relationships; rather, it was the fact of his expression. To the extent Defendants benefitted at all, they would have benefitted equally by simply telling White Zuckerman that Plaintiff was publicly requesting information from other White Zuckerman clients about negative experiences with the firm. In this respect, Defendants’ alleged transmission of data to White Zuckerman resembles activities such as “criticism, comment, [and] news reporting,” which are quintessentially fair uses. To be considered “commercial” use, the use must “exploit[ ] the copyright for commercial gain — as opposed to incidental use as part of a commercial enterprise.” Thus, Defendants’ use of Plaintiff’s work was not commercial….

Defendant Robert Weinstein’s alleged violation of the CAALA listserv agreement [which the court earlier concluded didn’t give plaintiff any enforceable contract rights –EV] is therefore relevant to the discussion because “[a] use that … clearly infringes the copyright holder’s interests in confidentiality and creative control is difficult to characterize as ‘fair.’”

Concerns about confidentiality and creative control, however, lie primarily if not exclusively in the context of unpublished works. Plaintiff asserts publication at the time his e-mail was posted on the listserv. Any confidentiality concerns based on post-publication copying from the listserv are greatly attenuated. At bottom, Plaintiff’s confidentiality concern is about the transmission of his unprotectable idea rather than the disclosure of the manner in which he expressed it. Such concerns are outside the purview of copyright law.

Defendants’ highly transformative, non-commercial use of Plaintiff’s work far outweighs the negligible harm to Plaintiff from violation of the CAALA’s confidentiality provision. Accordingly, the first fair use factor — the purpose and character of the use — substantially favors a fairness finding….

The next factor focuses on the work’s nature. “The more informational or functional the plaintiff’s work, the broader should be the scope of the fair use defense.” As discussed above in connection with originality, Plaintiff’s one-sentence listserv post is entirely informational or factual in nature. Plaintiff concedes that any copyright he holds is “thin.” On the whole, the second factor also supports a fair use finding….

The facts of this case reveal it to be one of the limited situations where verbatim copying of an entire work is fair. There are two independent reasons why this is so. First, the “work” at issue is a 23-word sentence. It would be nearly impossible to excerpt this sentence for legitimate comment or criticism without reproducing it in toto…. The copying of Plaintiff’s entire sentence was also reasonable in light of the purpose for which it was reproduced — to alert White Zuckerman about Plaintiff’s potentially libelous statement…. Reproduction of copyrighted material for use in litigation or potential litigation is generally fair use, even if the material is copied in whole….

Evaluating the fourth and final fair use factor — the effect of the infringing activity upon the Plaintiff’s potential market for or value of the copyrighted work — is straightforward: There is no effect. Plaintiff’s listserv post has no market value and Defendants’ alleged copying and distribution in no way diminishes the intrinsic value of the post to Plaintiff or other listserv users. The only actual damages that Plaintiff alleges are the copyright registration fee, his time spent on the instant litigation, and pain, suffering, and emotional distress. Because Defendants’ alleged infringement has no effect on the value of Plaintiff’s listserv post, this factor strongly favors a fair use finding….

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