Leah Rothman was a segment director on the Dr Phil show for 12 years, until (she says) she and her co-workers were locked in a room by Dr Phil and screamed at and threatened by the show's host, who was upset by leaks from the show's staff.



Before leaving the show, Rothman used her phone to capture a nine-second video from the show's archives, to use as evidence in a lawsuit alleging emotional distress and false imprisonment.





Dr Phil's company retaliated by registering a copyright in the nine-second clip and then sued her for infringement for having made her evidentiary video.





Here's where the crappy judge comes in. Judge Rodney Gilstrap is a District Judge of the United States District Court for the Eastern District of Texas — the favorite court of America's bottom-feeding patent trolls, which is how Gilstrap came to hear an astonishing 20% of all patent cases in America.

Gilstrap never met an abusive practice he didn't love. When Dr Phil's people brought their ridiculous infringement claim to his courtroom, he ruled in their favor, producing the most incoherent, bizarre fair use ruling I can recall, and that's a crowded field.

Mike Masnick has done the important work of tearing Gilstrap's absurd ruling to shreds. Here's a brief quote from his masterful analysis:



So let's go through Judge Gilstrap's fair use four factors analysis. First up — the purpose and character of the use — which looks into the nature of the use, whether it was transformative and whether it was for commercial use. Again, to me, this seems quite clear: the purpose had nothing to do with the reason the work was created in the first place, making it obviously transformative. But, Judge Gilstrap wades into swampy waters by claiming that because Rothman obtained the video via "bad faith" it's not. Rothman did not copy to then educate the masses or to further the greater good. She copied to aid her pending lawsuit seeking money damages where she is the only plaintiff and sole potential beneficiary. It is possible that a breach of contract or some other act of bad faith may sometimes be necessary to further an important public interest and therefore such conduct might not always weigh against fair use. However, there is a difference between a defendant who "purloins" a private manuscript or confidential video for personal gain and one who obtains, or even misappropriates, materials of significant public interest…. Here, there is no countervailing public interest because Rothman copied the work at issue "solely" for use in her own lawsuit.



This seems wrong on multiple levels. He points mainly to other cases where "bad faith" was an issue, mainly Harper & Row v. Nation Enterprises, in which The Nation published a large excerpt of Gerald Ford's memoir, and it was deemed not to be fair use, in part because of the Nation's own actions and intent. But, in that case, it was clear that what the Nation had done was to publish the excerpt from the book to reveal what was in the book and to undermine the sales of the actual book. In other words, it was in competition with the book. In this case, the intent was to use it as evidence. That has nothing to do with the copyright aspect.

Similarly, Judge Gilstrap's weird focus in claiming that she was the "sole potential beneficiary" and there was nothing here to "further an important public interest" also seems… just wrong. Rothman's effort was to expose what she felt was dangerous behavior by a very public figure. How is that not furthering the public interest? Gilstrap notes other cases where "bad faith" harms fair use rulings, but the "bad faith" is always about infringing the copyright. Here, he seems to be arguing that the "bad faith" is… because she wanted to prove something bad about Dr. Phil. I can't even see how that's "bad faith" at all.



Awful Court Decision Says Dr. Phil Producer's Video Not 'Fair Use'

[Mike Masnick/Techdirt]