Copyright Law

Judge Uses Shakespeare Insult in Rejecting Lawyer’s Copyright Claim for Copied Sentence


A federal judge is using a Shakespeare put-down in rejecting a lawyer’s claim of copyright infringement for a copied sentence.

U.S. District Judge Dolly Gee said lawyer Kenneth M. Stern may have to pay attorney fees for pursuing “such folderol”—a claim of copyright in a forwarded sentence-long message, the Volokh Conspiracy reports. The sentence, posted on an email discussion group for consumer attorneys, asked whether anyone had ever had billing problems with a forensic accounting firm. The defendant, a lawyer, had forwarded the message to his sister, also a lawyer, who forwarded it to the forensic accountants, according to Stern’s complaint.

In a footnote, Gee made her point with Shakespeare, the Volokh Conspiracy reports in a separate post. “Plaintiff begins his argument rhetorically, querying whether the following sentence is copyrightable: ‘To be, or not to be, that is the question’ ” the judge wrote. “Perhaps, a more appropriate play from which to draw quotations would be Much Ado About Nothing.”

In the February opinion (PDF posted by the Volokh Conspiracy), Gee said that some sentences may deserve copyright protection, but Stern’s discussion group query isn’t among them.

Whether a short work deserves copyright protection depends on creativity, she said. “For instance, the opening stanza/sentence of the poem Jabberwocky contains, coincidentally, the same number of words—23—as plaintiff’s Listserv post: ‘Twas brillig, and the slithy toves / Did gyre and gimble in the wabe; / All mimsy were the borogoves, / And the mome raths outgrabe.’ The utter creativity of this ‘greatest of all nonsense poems in English’ prompted one court to suggest that even its first line would be entitled to copyright protection. Plaintiff’s Listserv post, in contrast, displays no creativity whatsoever.”

Stern tells the ABA Journal he disagrees with Gee’s decision and he has filed notice of appeal. “She thinks an attorney stealing another attorney’s work product from a confidential Listserv is much ado about nothing?” he says. “The court will be reversed on appeal.”

Stern says he’s particularly troubled because Gee did not believe his claim that stress caused by the infringement aggravated his severe arthritis. “The decision is an affront to me as a disabled person,” he said. “She’s unfair and she’s biased.”

Even if it were true that he suffered no physical harm, he says, he was still entitled to an injunction. And his registration of his sentence with the U.S. Copyright Office creates a presumption of validity, demonstrating that his copyright claim was not made in bad faith, he asserts.

The copyright claim is not the only issue in the case. Also dismissed were claims related to the theft of confidential computer information. The legal issue will be addressed in a different case pending before the San Francisco-based 9th U.S. Circuit Court of Appeals. If the 9th Circuit rules as Stern expects, he says, his theft-related claims will be reinstated. “That’s really the meat of the case,” he adds.

Updated at 1:10 p.m. to include Stern’s comments.

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