Tuesday, February 19, 2008

My right to Fair Use upheld in Federal Court, but the beat goes on....

In a nutshell, here is what happened in Court.

I am being charged with copyright infringement by Grand Master of the Black Dragon Fighting Society, William V. Aguiar III, over use of images from Count Dante's World's Deadliest Fighting Secrets and film footage from his instructional video set. Aguiar filed a settlement proposal for $500,000.00 against me, $100,000 against the Sheppards and $1 million against Ashida Kim. You can see details of the actual court case at Justia.com - WIlliam Aguiar Vs Floyd Webb.

We appeared before Judge Mark Wolf in Federal Court on February 15, 2008, in Boston, MA. The charges for trademark violation were dropped from the suit before the case started. Trademark abuse was on of the justifications for usiing a DCMA to take down my website. Aguiar had failed to renew trademarks and was not granted a renewal.

Here is what happened in court. I was represented by the Stanford University Fair Use for Documentary Film Project (FUDF), founded by Lawrence Lessig. My representation, Anthony Falzone, Julie Ahrends and Brandy Karl flew in from Stanford. I was also represented by David Kluft and Walead Esmail of Foley Hoag in Boston.

My co-defendants, Barron and Wendy Sheppard, were represented by Aaron Silverstein and Radford Davis aka Ashida Kim, was represented by Amy Brosius and Mark Fischer of Boston.

Aguiar presented his case, Pro Se, "on behalf of himself". I am no lawyer, but let me take a second to outline the perils of Pro Se litigation. Marshall H. Tanick of Mansfield, Tanick and Cohen, P.A. says this about Pro Se:

"The venerable tradition of self-representation in legal matters is also embedded in the U.S. Constitution. Although pro se is not expressly covered in the Constitution, courts have held that an individual is legally entitled to self-representation.

There are a number of reasons why individuals elect to represent themselves pro se. They include strong personal views about a particular matter, refusal or inability to work with legal counsel, and inability to find legal counsel who are willing to work with an individual, often because of the position taken by the pro se party in the litigation."

Next he goes on to say:
"...the driving force for much pro se litigation is economics. The high cost of legal representation often leads individuals to represent themselves. This trend has been branching out in recent years as legal fees and expenses continue to mount."
His self-representation is clearly a constitutional entitlement as his long-term lawyer obviously would not take the case. Tanick goes on to say:
"Litigants who are proceeding on a pro se basis usually are held to the same legal standards as attorneys. This means that if they fail to follow court rules and regulations, they are subject to litigation sanctions, and the excuse that they are not legally trained may often fall on deaf ears. In one leading Minnesota case, State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988), the Court held that pro se litigants that failed to abide by Court requirements may have their lawsuits dismissed even though they may not be familiar with some of those requirements."
In light of this opinion, Judge Mark Wolf was very patient and lenient with Aguiar. I understand this and I would want the same consideration for anyone who chooses this course, especially me. This is not an easy thing to pursue. It is time-consuming and requires a singular obsession with proving whatever point you have to make. It is a phenomenal feat to accomplish. I am not mad at the guy for taking his case to court. I am mad that it is me he choose and that, as far as I could see, he clearly has no case, in my opinion.

I am trying to look at from his side. I have nothing against Aguiar. I do not even know him. All I would say to him if he could drop the tough guy stance is that it pays to listens, to surround oneself with people who can help, who can offer good advice.

I would be up a creek without a paddle without the FUDF Project. Being a member of the Independent Feature Project, that held a panel on Fair Use in 2006 was an association that led to information that helped me survive this. It was my access to information and my willingness to reach out and ask for help that has made it possible to confront this issue head on.

Aguiar arrived to court late and requested a continuance of 90 days as he has just contacted a lawyer. President of the Fall River World Karate Federation, John Cole accompanied him to court and was doing a bit of coaching. Before court started, someone said that the courtroom was so acoustically sensitive that you could hear lawyers whispering to their clients. Well, Mr Coles words of encouragement to Aguiar did not go without the attention of the entire courtroom, let alone the judge.

The Judge advised Aguiar that he was procedurally out-of-line, asking for the continuance. He then proceeded to dismiss both the Sheppards and Ashida Kim for lack of personal jurisdiction. They were dismissed without prejudice, meaning that he can refile against them when he has a lawyer and is free to resubmit the charges to have them included in the case with me. Aguiar was cautioned that should he do so, he will be financially penalized if he cannot prove his case against them. He can also bring cases against them in their home states.

The Judge explained to Aguiar why I was entitled to Fair Use, he was very clear and gave Aguiar time to both compose himself, as he was visibly agitated, and to respond. He clearly did not understand how things worked and I think he was actually shocked that Sheppard and Kim were dropped from the case.

My right to fair use, the way in which I used the materials, and my claim to fair use was confirmed by the Judge.

Based on the materials presented to the court Aguiar has little to go on proving his claim of copyright ownership. Judge Wolf gave him until Feb 29 to appear with his new lawyer to be ready for a March 6 conference. Aguiar will inform the Judge of how he wants to proceed with the case then.

On March 6, Aguiar will tell the judge if it is his intention, with his new attorney to pursue the case with me alone, or to bring Sheppard and Kim back into the case to try us together and make his additional case of conspiracy to defraud him of his legal copyright as well as my infringement.

These are the events as I saw them. I reserve the right to make errors, but in no way intend to piss off my attorneys with my overzealousness in reporting these events. They are preparing for the March 6 conference.

There is a lot more I could say. But I will wait until after March 6.

The film continues. What I lack in production value, I will make up for with interviews and great graphics. I have strategized how to get materials I will need in worst case scenarios and the alternatives are working well.

I have just seen images of crime scene photos from the dojo war. These will not be seen here here anytime soon. But they do actually exist and I saw them. The research continues and useful information continues to come in. What a life this man John Keehan lived in 35 years.

1 comment:

Sa Bum Nim Pieschala said...

Creeden,
I sent you an email to your address you provided. feel free to contact me if you still think I can help work this out.