The Los Angeles Times carries an op-ed about a copyright infringement lawsuit filed by the City of Inglewood, California, against a local resident who has taken portions of the city’s own recordings of public meetings to highlight conduct by the city’s elected mayor that he deemed inappropriate. The defendant has a web site that lambastes mayor James T. Butts, and from which he links to a series of You Tube videos that take small bits of city council meetings on which he superimposes his own comments in captions and adds audio of his own voice overs. Classic fair use, you would think. But the city claims copyright in these public records and seeks injunctive relief taking down the videos as well as damages and attorney. Happily, the complaint also contains hyperlinks to the videos in question, so viewers can click on the links as provided on archive.org to make their own fair use judgments.
Represented pro bono by Davis Wright Tremaine, Teixera has moved to dismiss under Rule 12(b)(6), arguing both that California law bars local governments from asserting copyright in public records and that the videos, which can be considered because they are linked from the complaint, are fair use. Inglewood’s lawyer JoAnna Esty (or Joanna — her web site does not always capitalize the second "a") contends that Teixerra’s use is “commercial” even though there is not even a hint of revenue-raising on his web site, that posting excerpts with captions superimposed is not transformative, and that a deadpan video of a city council meeting is highly creative. Esty’s claimed expertise in intellectual property law is rather belied by the silly and even dishonest arguments that she makes in her brief.
The proposed new federal anti-SLAPP law should not be needed to enable Teizeira to recover his attorney fees because this lawsuit is so far beyond the pale; Esty herself might be held liable on a sanctions theory, as well as suffering a well-deserved hit to her personal reputation for agreeing to handle this case for the plaintiff. The pity is that the residents of Inglewood will have to pay for both sets of lawyers, and that there is no obvious way to impose the expense of this abusive litigation on whichever public officials caused it to be filed.