America's crappiest patent judge hands down epically terrible copyright ruling


#1

Originally published at: https://boingboing.net/2017/09/06/judge-rodney-gilstrap.html


#2

So what recourse does Ms. Rothman have to go on from here?


#3

I assume that the registration of the copyright was AFTER it was submitted as evidence. So this 9 seconds is only the “whole” of the work because of the selection of 9 seconds that Rothman made. If this stands than ANY conceivable use of material is potentially of the “whole work” because the “whole work” is created from the smidgen used. This is in marked contrast to Texaco vs. AGU where an article from a journal was declared to be the “work” of which the “whole” was copied, rather than the article being considered a much smaller percentage of the entire year’s subscription. At least in that case the article had an identifiable beginning and end and individual authorship. In this case they could just as easily copyrighted each individual second or even frame and claimed multiple infringements.

Also, ISTR that there has been a ruling that the most important factor of the four, is the effect on the commercial market, which in this case is minimal.


#4

Where’s the money trail leading to this guy? Seriously.


#5

Well Judge Rodney Gilstrap, you’ve just been schooled by the blogosphere. How does it feel to begin to see your career begin to spiral out of control? The comments on the original post are a scorching, trainwreck of venom. We can only hope it leads to some good.


#6

While it is true that many courts and commentators have acknowledged the general principle that use of a work in a judicial proceeding may be considered fair use, fewer have addressed whether copying an entire work in preparing a complaint is transformative. For example, Wollersheim, upon which Defendant relies, includes only a cursory discussion of fair use and makes no mention of transformativeness. 971 F.2d at 364. Here, Rothman made no alteration to the work nor did she use it as part of a commentary or criticism. See Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 823 n.48 (5th Cir. 2002) (Wiener, J.; King, J.; Higginbotham, J.; Davis, J.; Stewart, J.; Dennis, J., dissenting) (suggesting that a use is not transformative if it makes no alteration to or commentary on the underlying work). Instead, she copied the work to give to her lawyers in her California lawsuit. Even if such a use is transformative, it is not highly transformative.

First, apologies for the wall of text above- the judge really doesn’t believe in paragraphs.

So, using the tape in court proceedings would be ok if she made alterations to it? Wut?

Using it in your complaint is apparently somehow different from using it in legal proceedings?!?

Using it unaltered is apparently not fair use, but of course altering it would deprive it of any value as evidence and completely damage your credibility and destroy your case, etc., etc.

That’s some catch, that Catch-22.


#7

This makes for a new defense for murderers caught on camera to invalidate the use of footages: let’s call this the De Quincey defense.


#8

Registration or publication hasn’t been a requirement for work to get copyright protection since 1978.

That said, this is still a completely bullshit ruling that tramples on the Fair Use doctrine.


#9

…Although it is a requirement to sue for copyright infringement. (and you CAN register it after the infringement has happened) And that just makes is even stranger that it was that ex-post-facto act of registration that defined the “work” of which the 9 seconds were the entirety.


#10

Not if she did what some on Youtube do when presenting clips of things, and that’s flip the entire video 180 degrees, so it’s a mirror-image.


#11

It’s still been altered. But yes, I suppose if this ruling were to stand that is what one would have to do.

Or you could superimpose a penis on Dr Phil’s head throughout. I suppose that would count as commentary.

I don’t see how either of those would actually help - the problem is the copying of the footage in the first place. Before you can do any of the transformative stuff or comment, you have to make the copy.

If doing that is unlawful, how can you ever get to the stage where you get to make your commentary or transform the work?

A large part of the argument here was that she was prohibited by various agreements with the production company from disclosing anything about the show or copying footage.

By copying the footage, she was in breach of both obligations. That was then used to say that she copied in bad faith and while not ultimately the deciding factor, it was one of the factors that went on the scales on the side of it not being fair use.

If employers are allowed to bind you with non-disclosure agreements to the extent that you are not even allowed to present evidence of the employer’s breach of their obligations in court, there is something seriously wrong with the justice system.

As It happens, I don’t think they are allowed to do that - even in the US.

This is the sort of bullshit case that does need to be challenged though because if he and people like him get to rule that way enough, it becomes more accepted and can be very hard to overturn.


#12

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