LISTSERV E-mail Gets No Copyright

Leslie Chong is a JD candidate at Osgoode Hall Law School.

In the Stern v. Does decision, a Californian court held that a short (23-word) email message sent through the LISTERV system did not qualify for copyright protection. This lawsuit stemmed from an email which read: “Has anyone had a problem with White, Zuckerman… cpas including their economist employee Venita McMorris over billing or trying to churn the file?” as written by Kenneth Stern, a lawyer in California who argued that his copyright had been infringed when a member of the listserv forwarded his email message to a recipient not belonging to the mailing list.

Stern had hired a forensic accounting firm (White Zuckerman) for one of his clients and believed that the resulting bill for the services rendered by the firm were excessive. He alleged that White Zuckerman had been churning his client’s file and wanted to canvass other lawyers for their experiences with the firm, so he sent a mass-email through the Consumer Attorneys Association of Los Angeles’ (CAALA) listserv. The email reached Robert Weinstein who subsequently forwarded Stern’s email to his sister, Sara Weinstein (an individual not belonging to the CAALA listserv). Sara had been a client of White Zuckerman and showed the email to the firm. It is clear that Mr. Stern had wanted to keep this email somewhat confidential. Failing to do so, he then alleged that the Weinsteins had infringed on his copyright and that they had no right to effectively duplicate and distribute his listserv post.

In denying his claim for copyright in his sentence-long ‘work’ the judge spared no words in condemning the plaintiff for pursuing such a ‘frivolous’ lawsuit. The judge noted that the length of a work is not determinative of copyright protect, but rather the presence of creativity. In Stern’s email, there was no creativity whatsoever – the content was purely directed by “functional considerations” in the plaintiff’s request for factual information. Given that Mr. Stern’s idea could not be distinguished from the expression sufficiently to warrant protection, the court ruled that there was no copyright. It went on to discuss how even if the sentence had been granted protection, the doctrine of fair use would have saved the defendant’s infringement.