by Paul Alan Levy
The Seventh Circuit today issued an important decision confirming that fair use can be determined at an early stage of a copyright case, based on nothing more than a side-by-side comparison of the copyrighted work and the later work claimed to infringe. Recognizing that baseless intellectual property claims may be brought in an effort to run up the costs of a critic (as I have discussed on this blog previously), a unanimous panel upheld dismissal of a lawsuit brought by the creator of the viral Internet What What (in the Butt) video over a parody episode on South Park. The court actually puts to one side the issue whether the district court properly ruled on a motion to dismiss, using the doctrine that a complaint can be dismissed under Rule 12(b)(6) based on a document referenced in the complaint but attached only to a motion to dismiss, but upholds the dismissal as proper under Rule 56 even though the motion was not captioned that way. (See this discussion of why 12(b)(6) is procedurally superior)
Having resolved the procedural issues, the court required a mere three pages (10 to 12 of the slip opinion) to breeze through the four statutory fair use factors and uphold judgment in favor of the defendant. And the court brushed aside the plaintiff's assertion in a reply brief that it should have been had the opportunity to take discovery into such matters as the defendant's intent: "We noted during oral argument that such a broad discovery request, surely entailing expensive ediscovery of emails or other internal communications, gives Brownmark the appearance of a 'copyright troll.'" So far as my (admittedly cursory) research shows, this is the first time the "copyright troll" term has been used in a federal appellate decision.
Thanks to the inimitable Fred von Lohmann for drawing my attention to this ruling, but also to Stacia Lay's IP Law Chat for posting the affirmed decision of the district court as well as the somewhat reluctant decision awarding attorney fees to the prevailing defendant. The reluctance was based on the fact that plaintiff is a small company, while the defendant is a huge one; the court was worried about discouraging small copyright holders from taking on the behemoths of the entertainment industry. In the end, though, the court was persuaded that the fact that the suit was brought over clearly protected parodic speech, and the need to protect such speech against abusive litigation, militated in favor of a fee award.
Abusive IP owners, beware.