Listserv Post Not Copyrightable
A short post on a listserv lacks creativity to be copyrighted, and even if it were creative, forwarding the post to others is fair use, a California federal court found.
The listserv post was made by an attorney who was seeking information regarding a certified public accounting firm, which he believed had billed excessive hours to his client. When the post was forwarded to people at the CPA firm, the attorney obtained a copyright registration on the post and sued the persons who forwarded it.
The post in its entirety stated, “Has anyone had a problem with White, Zuckerman . . . cpas including their economist employee Venita McMorris over billing or trying to churn the file?”
The district court found that the post “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.”
Even though the court found that the post was not copyrightable, the court did analyze whether the resending of the post was fair use under the U.S. Copyright Act. It found that Defendants’ forwarding of the post was fair use. “This is unsurprising. 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 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. A free and vibrant democracy depends upon the unfettered exchange of ideas.”
The court found that a “reasonable person, particularly one who happens to be an attorney, would not have pursued such folderol. Plaintiff’s decision to proceed with this patently meritless cause of action supports a fee award.” However, because defendants failed to properly support their fee request, the court declined to award attorneys’ fees to the defendants.
Kenneth M. Stern v. Does, et al., C.D. Calif., No. CV 09-01986 DMG.