• Six Degrees of Sun Tzu: Fair Use and the Art of War
  • April 27, 2011 | Author: Elisabeth A. Moriarty
  • Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
  • Let’s play a bizarre twist on a familiar trivia game I like to call “Six Degrees of Sun Tzu.” If I challenged you to connect the author of Art of War (a 2,500 year old Chinese treatise on military strategy) to the author of a listserv posting (the distinctly 21st century phenomenon of social media), how many degrees do you think it would take you to do it? Here’s betting you won’t beat Judge Dolly M. Gee of the United States District Court for the Central District of California, who accomplished the feat in just one move.

    Judge Gee recently (and hilariously) smacked attorney Kenneth Stern upside the head for filing a lawsuit claiming that the forwarding of a single, 23-word sentence he had posted to a listserv email list constituted copyright infringement. The Court’s legal analysis opens by quoting a phrase — in Chinese characters — from Sun Tzu’s Art of War (the Court translates it in a footnote): “He will win who knows when to fight and when not to fight.” What, you ask, could possibly prompt the Court to cite with approval the theories of an ancient Chinese military general in a copyright infringement case? Here are the facts:

    Worried that a forensic accounting firm he had retained was overcharging his client, Stern posted a question to the Consumer Attorneys Association of Los Angeles listserv, asking if anyone else had experienced overbilling problems with the CPAs. Another listserv member emailed the posting to his sister (a non-member), who was a client of the accounting firm. She, in turn, forwarded it to the CPAs. Then it got interesting.

    Lewis Carroll He Ain’t

    Stern was peeved, and sued brother and sister for copyright infringement, and they, equally miffed, moved for summary judgment. The Court granted the motion, finding that the 23-word post lacked sufficient creativity to be copyrightable. The Court noted that a creative short sentence like Lewis Carroll’s famed nonsense poem Jabberwocky (the first stanza of which, originally published by itself, is coincidentally also 23 words long) could be subject to copyright protection. But, evidently unmoved by such stirring turns of phrase as “[H]as anyone had a problem” and “trying to churn the file” (there’s 43.5% of his post right there), the Court determined that Stern’s post was utterly “devoid of creative effort.” (Don’t forget what your ninth grade English teacher always told you, Mr. Stern: show, don’t tell.) As Stern’s post was essentially functional in nature — it merely requested factual information — and the expression of his idea was indistinguishable from the idea itself, his post was not entitled to copyright protection.

    This is neither surprising nor groundbreaking. But here’s where the opinion gets intriguing, at least to us legal types.

    Fair Use on the Wild Wild Web

    Giving Stern the benefit of the doubt, the Court engaged in a fair use analysis, finding that the siblings’ verbatim copying of the entire post was “highly transformative” because it was directed toward a completely different purpose: while the original post sought information, the re-post was meant to alert others to the existence of the first post. (So for those copyright critics who argue that a work has to be altered in some fundamental way in order to be transformative, “you got list-served.”) While noting that “wholesale copying” of a copyrighted work typically precludes application of the fair use doctrine, the Court found this to be one of those “limited situations where verbatim copying of an entire work is fair.” The Court reasoned that because the work was only 23 words in length, it would be nearly impossible to excerpt it for legitimate comment without reproducing it wholesale. Moreover, the Court was persuaded by the “reasonable” purpose for which the work was reproduced: to alert the CPAs about the potentially libelous statement, finding that this weighed in favor of a fair use finding.

    In balancing the fair use factors, the court seemingly issued a hall pass to those itching to plagiarize the blogs or tweets of others:

    In an age of blogs, listservs, and other online fora, a person’s short comment in cyberspace is frequently quoted in its entirety as others reply or forward it elsewhere. It would be strange, dangerous even, if every such quotation subjected the copier to liability and a federal lawsuit. Such heavy-handed tactics are akin to using a cannon to kill a mosquito; they carry the same attendant risk of collateral damage by chilling free speech.

    This analysis may prove far more significant than it seems at first glance. While some people (erroneously) believe that “the web is considered public domain,” copyright protection is very much alive and well on the Internet, and represents the legal basis for everything from blocking the publication of sex tapes to preventing embarrassingly saucy texts from being reposted on the Web. While there isn’t usually much to defend about the quality of discourse on the Web, the law has never stopped applying just because the idiocy has moved from paper to electronic media. Judge Gee’s decision, though, could be read to suggest that copyright considerations function differently on the Web — a suggestion that could have far-reaching consequences, given that the Web has, for some time, been the central battleground of the copyright world.

    In other words, that thunderous roar you just heard was the sound of Tiger Woods’ (alleged) mistresses simultaneously running, in ridiculously high-heeled stilletos, to their computers to post his (alleged) sexy text messages on their websites.

    Now Let This Be a Lesson to You

    And now for the portion of the case that will amuse everyone, not just us legal folk: the Court found that Stern’s “patently meritless” claims were frivolous enough to require him to pay the defendants’ attorneys’ fees. The Court seemed annoyed by Stern’s “implausible” damages claims. Maybe it was because Stern claimed emotional distress and stress-related injuries arising from the siblings’ alleged infringement, including aggravation of the arthritis in his right hip. (So, next time someone really offends your sensibilities, just yell out, “Ow! My hip!” Seriously, this strikes me as one half-step above Stern simply claiming that the forwarding of his post left him with a bad case of the vapors.)

    The Court called these averments “preposterous,” and I couldn’t agree more. I actually laughed out loud when I read the attorneys’ fees discussion in the opinion. This guy was an attorney; he should have known better. I don’t know, I think Confucius may be the more apt Chinese philosopher here: “When a wise man points at the moon, the imbecile examines the finger.”