With any helpful regulation, … there’ll all the time be some litigants who search to abuse it, and this courtroom believes that there’s good cause to suspect that this case includes such a litigant. In so stating, this courtroom notes that this case bears a rare similarity to a different copyright motion dismissed by the Fifth Circuit in its February 2022 choice in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (fifth Cir. 2022). [For more on that Fifth Circuit decision cited in the case, see this 2022 post. -EV] In that motion, the Fifth Circuit dismissed an motion by the exact same plaintiff on this case, primarily based on an nearly similar citation on social media of an inspirational passage from his e-book Profitable Is not Regular. {[I]t is unattainable for this courtroom to enhance upon holdings that are, by their very nature, binding precedent on this circuit.}
In Eagle Mountain, the Fifth Circuit described plaintiff’s e-book as follows:
In 1982, Bell printed Profitable Is not Regular, a 72-page e-book that gives methods for fulfillment in athletics. Bell continues to market and promote Profitable Is not Regular via on-line retailers and his private web site, the place he additionally provides merchandise, together with t-shirts and posters that show the passage that was quoted within the tweets.
That passage, which Bell calls the WIN passage, is individually copyrighted. Bell provides licenses for its use. The passage reads:
Profitable is not regular. That does not imply there’s something flawed with successful. It simply is not the norm. It’s extremely uncommon.
Each competitors solely has one winner. Irrespective of how many individuals are entered, just one particular person or one crew wins every occasion.
Profitable is uncommon. And as such, it requires uncommon motion.
With a view to win, it’s essential to do extraordinary issues. You’ll be able to’t simply be one of many crowd. The gang does not win. You must be prepared to face out and act otherwise.
Your actions have to mirror uncommon values and priorities. You must worth success greater than others do. You must need it extra. Now take word! Wanting it extra is a call you make and act upon—not some inherent high quality or burning inside drive or inspiration! And it’s important to make that worth a precedence.
You’ll be able to’t prepare like everybody else. You must prepare extra and prepare higher.
You’ll be able to’t speak like everybody else. You’ll be able to’t suppose like everybody else. You’ll be able to’t be too prepared to hitch the gang, to do what is anticipated, to behave in a socially accepted method, to do what’s “in.” You’ll want to be prepared to face out within the crowd and persistently take distinctive motion. If you wish to win, you must settle for the dangers and maybe the loneliness … BECAUSE WINNING ISN’T NORMAL!
This case arises from Kiffin’s March 20, 2022 tweet of the very same passage quoted above ….
This courtroom observes that, after quoting this identical passage in Eagle Mountain, the Fifth Circuit famous plaintiff’s predilection for suing public faculties and different non-profit entities, in a fashion which many would regard as significantly lower than inspirational. Particularly, the Fifth Circuit wrote that:
Bell has one other income stream. He zealously seeks out and litigates unauthorized makes use of of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. A lot of the defendants have been public faculties or nonprofits, which printed the WIN passage on social media.
In affirming the district courtroom’s award of attorneys’ charges towards Bell, the Fifth Circuit had very harsh phrases for his litigation practices, writing that:
Bell will not be the everyday copyright plaintiff looking for “a good return for [his] artistic labor.” He has an extended historical past of suing public establishments and nonprofit organizations over de minimis makes use of of his work. Taking these circumstances into consideration, the district courtroom fairly concluded that Bell is a serial litigant, who makes exorbitant calls for for damages in hopes of extracting disproportionate settlements. This case is one other within the line. The varsity shared a single web page of Bell’s work with fewer than 1,000 on-line followers and instantly eliminated the posts upon request. Bell was unable to determine any precise monetary harm related to that use however introduced swimsuit anyway. Legal professional’s charges have been thus an applicable deterrent, each with respect to Bell and different copyright holders who would possibly think about the same enterprise mannequin of litigation.
Whereas there was clearly a powerful air of disapproval within the Fifth Circuit’s description of plaintiff’s serial litigation practices, that courtroom however gave his copyright arguments thorough consideration earlier than finally concluding that the honest use doctrine protected the reposting on social media of the identical “Profitable Is not Regular” passage which is at difficulty right here….
The grievance doesn’t recommend that the varsity’s use had any cognizable, adversarial affect on Bell. What it does clarify is that the softball crew and flag corps used Bell’s work in good religion, for no industrial acquire, and for the laudable function of motivating college students to succeed. We can’t see how the artistic arts can be higher served by allowing Bell’s swimsuit to proceed. As a result of a profitable fair-use protection “seems on the face of the grievance,” and Bell can “show no set of information” that may overcome it, the district courtroom correctly dismissed the case.
This courtroom notes that plaintiff seems to have an exceedingly excessive opinion of the literary worth of his WIN passage, proclaiming on his web site that “[t]he individually copyrighted Profitable Is not Regular passage (“WIN”) is probably going essentially the most learn & extensively used literary work in historical past!” This extraordinary assertion, with which Shakespeare, Tolstoy and Faulkner would possibly take difficulty, frankly causes this courtroom to wonder if it’s coping with a litigant whose ft are firmly planted on the bottom. Whereas this courtroom would possibly ordinarily suspect that such an assertion was made in jest, there may be nothing humorous in regards to the dozens of lawsuits which plaintiff has filed towards quite a few entities which, because the Fifth Circuit famous in Eagle Mountain, have been principally “public faculties or nonprofits.” Furthermore, whereas the defendant on this case, a rich and well-known soccer coach, is significantly much less of an “underdog” determine than lots of the different entities that plaintiff has sued, Kiffin does have the benefit of being a defendant dwelling on this circuit who made the allegedly offending Twitter put up after the Fifth Circuit had issued its opinion in Eagle Mountain.
This courtroom notes that, following the Fifth Circuit’s choice in Eagle Mountain, plaintiff seems to have merely shrugged his shoulders, loaded his lined wagon and brought his touring litigation present to the following courthouse. In December 2022, plaintiff’s present made a cease in Wisconsin the place, as in Eagle Mountain, a district courtroom discovered his litigation ways to be sufficiently abusive to award attorneys’ charges towards him….. Having now seen plaintiff’s touring litigation present make a cease in its courthouse, this courtroom will not be required to disregard the information that 1) evaluations of that present are filtering in from surrounding communities, and a pair of) these evaluations are in no way constructive….
[P]reventing the federal courts from getting used as a discussion board for abusive shakedown lawsuits is important for the integrity of the federal judiciary as an entire and for public confidence in it. On this vein, this courtroom notes that the Fifth Circuit has held that “[a] district courtroom could bar a vexatious litigant from submitting future civil rights complaints except she seeks the prior approval of a district or Justice of the Peace decide.” This courtroom will not be suggesting that plaintiff has reached this level together with his WIN passage lawsuits (but), however the existence of this authority makes it clear that federal courts should not required to disregard prior findings of abusive litigation practices by different judges in evaluating the deserves of a selected declare….
In arguing that Kiffin acted in dangerous religion, plaintiff emphasizes his allegation that, in 2016, Kiffin took down a tweet of the WIN Passage after he despatched him a cease-and-desist letter. Accepting this allegation as true, plaintiff’s downside with looking for to assign dangerous religion to Kiffin on this regard is that the Fifth Circuit issued its opinion in Eagle Mountain shortly earlier than defendant tweeted the WIN passage a second time in 2022. That being the case, this courtroom believes {that a} affordable particular person in Kiffin’s place who cared to analysis the difficulty would have concluded that he had each authorized proper to re-tweet the WIN Passage, not less than on this circuit. This makes it very tough for any federal courtroom to assign dangerous religion to him on this regard, since that may quantity to that courtroom saying that a person acted in dangerous religion for doing one thing which the related federal appellate courtroom had already stated he had a proper to do….
In addressing this third [fair use] issue {“the quantity and substantiality of the portion utilized in relation to the copyrighted work as an entire”}, plaintiff has chosen to play it coy in his briefing, emphasizing that, whereas the Fifth Circuit famous that the grievance in Eagle Mountain particularly alleged that the WIN Passage was freely obtainable on-line, his grievance on this case incorporates no such allegation. Particularly, plaintiff writes in his transient that:
Kiffin nonetheless argues [the third] issue is “impartial” as a result of Dr. Bell made the WIN Passage “freely accessible” via licensed photos he posted on-line. The FAC, nonetheless, by no means alleges that, on the time Kiffin copied the WIN Passage in 2022, freely accessible, licensed photos of the WIN Passage have been obtainable on-line. Kiffin asks the Courtroom to imagine that the factual allegation in Eagle Mountain Saginaw that the WIN Passage was freely obtainable on the time of the varsity district’s posting in “December 2017[,]” remained true when Kiffin copied the WIN Passage on March 20, 2022. When ruling on a movement to dismiss, a courtroom can’t make that factual assumption that falls exterior the 4 corners of the pleadings.
That is the type of too-clever-by-half argument which this courtroom dislikes below any circumstances, however which it finds significantly distasteful throughout the context of plaintiff’s ongoing abuse of the copyright litigation course of. In so stating, this courtroom takes judicial discover of the truth that anybody who visits plaintiff’s web site right this moment can see the whole WIN Passage without spending a dime, at a number of totally different hyperlinks on that web site. See, e.g. https://winningisntnormal.com/product/w-i-n-12×18-poster-biker/. Furthermore, plaintiff doesn’t dispute that this was additionally the case when Eagle Mountain was determined. That being the case, it definitely stands to cause that Bell’s web site provided guests free views of the WIN Passage on the time Kiffin made the tweet at difficulty on this case, and at no level in his briefing does plaintiff deny that that is the case. Plaintiff has as a substitute chosen to take a coy “I am not saying it’s, however I am not saying it is not both” place on this difficulty, with which this courtroom has little persistence.
This courtroom needs to be clear that, primarily based on plaintiff’s prior litigation historical past, there is superb cause to suspect that this case is a part of an ongoing scheme on his half to counterpoint himself by abusing the judicial course of. This courtroom is prepared to offer plaintiff a possibility to steer it in any other case, however he is not going to accomplish that with coy and disingenuous arguments.
Fairly on the contrary, the way by which plaintiff makes these arguments, mixed with the way by which his factual allegations seem to alter primarily based upon his evolving view of what is going to enable him to get better, merely leads this courtroom to conclude that this case will not be, in actual fact, any totally different from Eagle Mountain or Milwaukee and {that a} widespread thread of dangerous religion runs via all of them….
Defendant’s movement to dismiss this case will subsequently be granted. Defendant has indicated that he could file a movement for attorneys’ charges, and this courtroom will subsequently chorus from issuing the judgment on this case pending consideration of any such movement.
