Expelled copyright infringement, cont’d

update 4/16: Both a commenter here and also P.Z. Myers have reported that Expelled filmmakers Premise filed on Monday a DJ (“declaratory judgment”) motion on XVIVO‘s copyright claims against them — i.e., asked a judge to look at the evidence & say that they are not infringing. Premise v. XVIVO, N.D. Tex., 4/14/2008.

Here are links to the PDFs of the
* complaint , and
* the statement of interested parties.
And may I just note that PACER is a pain in the ass?

Also via that same post @ pharyngula, Sarah S @ ERV reports that they copied not just the XVIVO video but other sources as well. Quel surprise.

Previous posts:
* Copyright claims against Expelled
* “Expelled” music licensed or not?

Thoughts on reading the complaint below the fold:

I am writing this NOW so anything you read while this message is here is particularly, even more than usual, DRAFT-y and should be considered as such.

On standing:
On standing and whether XVIVO has threatened litigation: Yep, looks like. The complaint says that XVIVO did send a letter, dated 4/9, and it mentions copyright, DMCA, and VARA.

(Earlier comments with helpful links for the non-lawyers: Just a note: To have standing to ask for a declaratory judgment, you have to have a live threat of litigation. (more at wikipedia on DJs) It is my understanding that, although XVIVO circulated a draft C&D, other sources have said they are not suing. If XVIVO has said they’re not suing, the judge should toss this out on standing. (Standing is a fun area of the law that basically says no harm, no foul, no lawsuit. more at wikipedia) … Whups, never mind: The complaint says that XVIVO did send a letter, dated 4/9, and it mentions copyright, DMCA, and VARA (the claims I discussed in my earlier post). “XVIVO, has sent a demand letter…” (p.1, #1) )


Noting that the case was brought in Texas, in the 5th Circuit. Premise is out of Texas but XVIVO is out of Delaware. The court has jurisdiction over XVIVO because of live clients (discussed later), but the complaint takes me back to the good old days when Internet jurisdiction was still sexy. Premise spends a goodly amount of time asserting reasons why personal jurisdiction over XVIVO is appropriate, trying to hit all the interactivity points made by the various Internet jurisdiction cases, the better to demonstrate that the court has general personal JDX over XVIVO:

[A]n Internet user in Texas and in this district can interact with XVIVO over the Internet in the following ways, among others:
   a. view XVIVO promotions, offers for services, and solicitations; [LQ: certainly not enough]
   b. hyperlink and download various items of sample work product including but not necessarily limited to the Inner Life Video; [LQ: certainly not enough. These are both basic website functions and non-interactive.]
   c. provide information to, and otherwise communicate with XVIVO; [LQ: not enough. IIRC, only the farthest outside cases held that this degree of interactivity constituted sufficient contacts for personal JDX.]
   d. ask questions and receive answers about XVIVO’s products and services, including ongoing projects; [LQ: Isn’t this the same thing as c.?]
   e. log into a private client section, which according to XVIVO’s own statements on its web site allows confidential communications, allows clients to participate in “review sessions” from Texas, allows clients to monitor from Texas over the Internet, the progress of “every element” of projects “24/7”; [LQ: this is the only interesting part. Looks like standard live support and discussion forum, plus access to some kind of in-progress database? Interesting, but since it’s available only to clients, it’s completely redundant since if they have clients in Texas they’ve already got jurisdiction.]
   f. complete a transaction over the Internet [LQ: again, early cases considered this sufficiently interactive; later cases backed off. IIRC.]

They repeat these and similar assertions in a few other places. For instance in 15. Premise alleges that XVIVO’s website states, “Feel free to call us or fill out this project assessment form and we will provide you with an estimate” and that XVIVO offers film clips that are “interactively accessible by clicking ‘View Original Article.'” plus additional bolding and italics and then they add “The form appears as if it can be filled out and submitted over the Internet through the XVIVO website.” Good golly, let it go already; this isn’t sufficiently interactive, and anyway you’ve already got jurisdiction because of the live clients previously mentioned. Are you billing by the hour, or what?

Still the mind lovingly considers interesting questions I haven’t researched or, really, thought about in a while: What the heck are the Internet jurisdiction cases in the 5th Circuit? Does the 5th follow Zippo.com? (Momentary misremembering of Zippo as Zappo — ha ha.) Does maintenance of this sort of generic interactivity actually constitute purposeful availment in Texas? Revell v. Lidov sort of suggests XVIVO’s web contacts (a generally available website with interactivity) are not substantial enough, I believe, but has there been anything since? How do courts handle things like support forums or live support chats? That would have seemed plenty interactive back in the early days but now — not so much. If you just have a few sales over the Internet to this JDX and available tech support or customer sales — eh.

But all this jurisdictional pondering is beside the point, because XVIVO apparently has actual live honest-to-god clients in Texas. Also, I would have thought that threatening to sue a party HQ’d in a jurisdiction would be enough to get personal JDX — certainly the DJ claim arises out of the threat to sue.

Premise’s description of itself:

Oh so disingenuous:

28. In promoting the ideas and questions raised in the Documentary Film, Mr. Stein and the Expelled producers have also been supporting Academic Freedom bills that would ensure the freedom of teachers, professors and scientists to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of theories of biological and chemical evolution.

(italics in the original; I added the link per my post of 4/14)
A real champion of liberty, that Mr. Stein. /sarcasm

Premise & the animation in Expelled:

Premise describes the segment as “one brief segment” that “portrays life at the cellular level to be extremely complex and asks viewers to consider the possibility that such complexity may have design implications in the origin of life.” (32)

A hit at the copyrightability / originality argument: “The concepts, principles and discoveries relating to the complexity of life viewed at the cellular level are widely known and available in the public domain and elsewhere.” (33)

Premise claims that it “commissioned computer animation of some of the natural processes inside a living cell.” (37)

Premise states that the XVIVO clip was in the promotional materials but not in the final film:

38. Some time ago, as part of the pre-release activity relating to the Documentary Film, Premise Media commissioned a DVD highlighting some parts of the Documentary Film as then planned. The DVD was designed as an educational resource highlighting the theme of the Documentary Film and was distributed free of charge in all cases. The resource DVD included a short clip of an animation of the inside of a cell. The short clip showing the cell interior was independently created early in the production process, and was used in the resource DVD. At the time the short resource DVD was made, the Documentary Film was not complete. The final version of the film does not contain the segment from the DVD on which XVIVO appears to base its claims in its April 9 letter. [emphasis added by me]

Oh this is a little gross: Premise claims that “Defendant evidently obtained access to the resource DVD or its contents … because … at the time it sent that letter, XVIVO could not have seen the Documentary Film (it had not been released).” They’re trying to hint at bad behavior on XVIVO’s part, but of course it’s well-known that the documentary was widely prescreened and reservations for the screenings could be made openly on the web. Also that Premise was sending out this DVD, probably widely. (Do we have any numbers on that or other information I wonder?)

And, BTW, copyright infringement applies to promotional materials as much as it does to the final documentary. I guess XVIVO didn’t discuss it so Premise is ignoring it.

#40 – Premise makes a bizarre point and ignores a later point.

XVIVO claims it ‘holds the copyright’ and asserts intellectual property rights to the Inner Life video, as well as ‘all the models, processes, and depictions’ therein, even though the video lacks any copyright notification identifying XVIVO as the copyright owner.

Lack of notification is irrelevant (see the 1976 Copyright Act). It’s definitely unclear to me who owns the copyright to the video, but it has nothing to do with notification. I guess this feeds into their implied license theory (addressed below.) (I see a different problem in the original letter: processes are not copyrightable, and natural processes are certainly not copyrightable. Depictions of processes, of course, can be copyrighted; I discussed the copyright of the natural process at greater length last week.)

#42 quotes from XVIVO’s demand letter; Premise states again that their animation was independently created and is not in the final version of the film.

#49 and #50 are confusingly worded but here’s where they raise the originality / ideas argument: The Inner Life video is a “scenes a faire” which can only be expressed in a limited number of ways. #50 hits the merger doctrine. I think that the email from David Bolinsky well explains the numerous creative choices that went into the animation, so again, although I think this is a very plausible and logical argument to make, I think it will ultimately be unavailing.

#51 Again with the independent creation. Dude, you can still infringe someone’s copyright even if you independently create your own thing — if you copied the copyrightable elements. I know why they’re banging on this drum, but it annoys me — there’s no parsing out of the potential claims in a logical fashion. I guess that would only hurt them.

#52 They toss in a fair use defense, but don’t explain how in any way; literally, they just assert that their use is a fair use.

#53 They hit de minimis. I pause to note that they are throwing basically every remotely plausible copyright defense in this complaint and in no particular order. This is really not the way I would have ordered my complaint. For instance, you would probably want to say that “we hardly took any, so it’s de minimis; however, if you happen to find that we took more it’s fair use”. Maybe they think their de minimis argument is so weak they just dropped it in at the last? Or maybe they just didn’t strategize at all.

#54 Implied nonexclusive license from the “available online for educational use.” That theory won’t get them far.

#55 First Amendment. Nice try; see Eldred, and, oh, also Art. I, Sec. 8, cl.8. As much as I might like to see the First Amendment be a good defense in a copyright case, it just won’t work — you can still speak even if you’re required to license (or create a non-infringing version) of the content.

What they didn’t address
Interestingly they didn’t address the VARA or DMCA claims at all. And they didn’t address the copyright infringement of the promotional video (other than to say that their copy was independently created). And they didn’t actually touch on the substance of the “substantial similarity” test.

How will it fare?

I think that substantively this is a pretty weak DJ action. (Which lends some credence to the general “this is all a press maneuver” theories. And if they ultimately get “Twelve Monkeys”-ed, it will only work out the better for them.)

Premise is asking the court to rule that their movie does not infringe XVIVO’s copyright. I don’t think the court can possibly make that determination based on the very sketchy explanations that Premise provided, unless XVIVO absolutely fails to respond to this motion.

Some other random observations

You know what else is interesting? In PACER, this case was filed under “Antitrust” as well as “Copyright”. Some kind of weird misfiling by the clerks, I guess.

Also I can’t help but notice that this case, a weak declaratory judgment motion being filed in a rush, presumably to pick their own forum (the godly state of Texas) and to get heightened pre-film-release publicity — this case is happening in the same state that, just a few hours away by car, fellow Christians and co-religionists have raped, molested, and virtually enslaved hundreds of children.

By all accounts this has put a massive burden on the state’s legal and social services infrastructure. Attorneys from around the state have been stepping in to offer their pro bono services, and some Christians have done some fundraising to help out. I’m just curious if Premise — producer of this fine Christian film — has done anything to help the victims of Christianity? What about A. Terry and Roy W. Hardin, of Locke Lord Bissell & Liddell in Dallas, and David R. Childress of Whitaker Chalk Swindle & Sawyer in Fort Worth, attorneys for XVIVO? Anybody?

Well, I’m sure those poor poor people are in their prayers. That‘ll be helpful.

In fact, one wonders why the Premise folks didn’t simply pray to the great Intelligent Designer in the Sky to save them from copyright infringement or perhaps issue a giant Declaratory Judgment in the Sky: “My minions have not infringed the copyright of the godless or if they have it’s okay because these are my scenes a faire that I have intelligently designed and on which I own the copyright.”

When I copy and they tell me “desist”,
Gonna go to the place that’s the best
When I get caught in a lie,
Goin’ up to designers in the sky
Goin’ up to designers in the sky
That’s where I’m gonna go when I lie
When I lie and they tell me desist
Gonna go to the place that’s the best

DJ actions might come a bust
Gotta have a friend in Jesus
So you know that when you lie
He’s gonna recommend you
To designers in the sky
Gonna recommend you
To designers in the sky
That’s where you’re gonna go when you lie
Steal in God’s name but they tell you desist
You’re gonna go to the place that’s the best

I sorta copied and I maybe infringed
I got a friend in Jesus
So you know that when I lie
He’s gonna set me up with
Designers in the sky
Oh set me up with designers in the sky
They’ll protect me when I lie
Texas judges might not let me rest
But Designers will protect me the best
Gonna go to the place that’s the best.

Parody of original lyrics by Norman Greenbaum set to melody by Norman Greenbaum.

Now that’s a fair use.