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 of 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 is. 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 Event!s
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.
Update (6/4/15): The retainer for the law firm representing the city is $50,000. To be sure, that doesn’t mean Inglewood will have actually lost that amount, but that’s what’s set aside for this case — for now.
Update (6/7/15): Teixeira’s reply in support of his motions to dismiss and to strike has been filed and is here.