Moot Court

Tom Field ---------- Spring 1996

Webster v. Modest The Decision Below [District Court for the District of New Hampshire]
Curt Mudgeon, J.

This action centers on cross-allegations of copyright infringement, under 17 U.S.C. § 412, by Alma Modest and Joseph Webster, based on each publishing email messages of the other on the Internet. Both defend on the basis of fair use and implied licenses. This court has jurisdiction under 28 U.S.C. § 1338(a). After evaluating the undisputed facts and fully considering legal arguments of the parties, I enter summary judgment for Modest, order Webster to remove certain information he has posted at a web site, and award costs and attorney fees to Modest.

I. Undisputed Facts      In July 1995, Modest and Webster both subscribed to an online consumer/patient discussion group (a listserv), called preg-talk, established by a third party. Upon joining the list, subscribers got a message generated by a listserv robot telling them the purpose (patient's sharing experiences with various medical products and procedures) of the list and how to, e.g., unsubscribe or get more information about using the list.
     At that time, Webster also had several "web pages" that contained ads provided by manufacturers of (mostly over-the-counter) medical devices and pharmaceuticals.
     This dispute began when Modest described, in response to a message from another subscriber to the list, her experiences with ICE-pak, a device she had used following a recent pregnancy. I will skip the details, but she described at some length how her experience was better than that of others who had used products of other manufacturers. She had never considered that a man might be on the list -- much less Webster, who lived only a few doors away from her in Concord.
     She was initially unaware of Webster because he was a "lurker" -- someone who belongs to a list but never posts a message. However, he monitored several lists to collect information that might be useful for his medical web pages, and, while "lurker" sounds ominous, he violated no list rules in signing up and following any lists, e.g., by pretending to be someone he wasn't.
     Modest first learned about Webster when someone referred preg-talk subscribers to his web pages as a source of possibly useful information. When she looked, she was very surprised to see that, although she was not named, her earlier comments about ICE-pak were quoted verbatim in what amounted to an ad for the product.
     She immediately wrote Webster and asked him to remove her comments from his pages. He refused, saying that people could hardly complain if comments they posted to a public list were reposted to others. He also pointed out that she had not been named and could hardly complain that her privacy had been violated. As their discussion heated up, she sent him a message calling him a jackass and a slimeball for lurking on a list intended for women to share intimate details concerning their pregnancies. She copied that message to the preg-talk list with her initial complaint and his response. As a result another list was created, and subscribers were monitored to exclude men.
     After complaining to a neighbor who attends Franklin Pierce Law Center, Webster initialed this action based on her posting his message intended only for her and her calling him nasty names. She responded by filing a countersuit for his posting her message at his website.

II. Discussion and Conclusions of Law A. Free Speech      Both parties urge that their respective uses of the others' email is protected speech, and Webster argues that requiring him to remove Modest's posting from his website amounts to a prior restraint.
     Basically, free speech means, first, that people are free to express their own ideas without prior restraint. The Supreme Court has found no problem with enjoining a party from using the writings of another under circumstances where it amounts to copyright infringement. Second, free speech protections attempt to minimize the threat of damage actions chilling speech of public interest.
B. Libel      Webster asserts that Modest's publicly calling him a jackass and a slimeball constitutes libel and demands a jury trial on the issue. I rule as a matter of law that her conduct causes no actionable injury. I also rule that it was both limited and privileged, both at common law and under the First Amendment, insofar as it concerned a matter of great interest to all those to whom it was communicated.
C. Copyright Infringement      The first issue is whether these email messages are protected by copyright. I find so. Under §§ 102 and 301 (all section citations to 17 U.S.C.), any writing once fixed in a tangible medium (a disk drive being such) automatically has copyright protection.
     The second issue is whether unauthorized reposting of messages amounts to infringement. I find so. Under § 106, copying a work is an exclusive right of a copyright owner, and reposting a message amounts to copying if the message is fixed on a different disk drive or similar medium. That is clearly true here.
     However, not all unauthorized copying is actionable in light of § 107. Moreover, it is clear that those who post messages to lists anticipate and impliedly authorize some reposting. I find Modest's use of Webster's message to be warranted under factors, 1, 2 and 4 of § 107.
     I find Webster's posting of Modest's message justified neither as impliedly authorized nor as fair use. First, use of her entire message (minus name) was for commercial purposes. That, alone, would remove it from the ambit of fair use per factor 1 and cases applying it. Second, the fact that the comment was unattributed means that, if desired, she could not be contacted by ICE-pak for purposes of authorized endorsement. Failure to attribute is unfair on its face. See, e.g., Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
     Finally,Webster urges that this action be suspended until their respective applications for registration ripen. Yet he instituted action on the basis of a mere application, and it seems indisputable that registration will occur in due course. Also, because a painful infringement continues, I refuse to suspend this action.

The Appeal      Webster has filed timely notice of appeal to the 1st Circuit. However, he raises only the following copyright issues.
      * First, he urges that the District Court erred in finding Modest's use of his work to be fair.
      * Second, he urges that, if so, his use of her work is also clearly fair.

Field's course page