Let’s play a bizarre twist on a familiar trivia game I like to call “Six Degrees of Sun Tzu.” If I challenged you to connect the author of Art of War (a 2,500 year old Chinese treatise on military strategy) to the author of a listserv posting (the distinctly 21st century phenomenon of social media), how many degrees do you think it would take you to do it? Here’s betting you won’t beat Judge Dolly M. Gee of the United States District Court for the Central District of California, who accomplished the feat in just one move.
Judge Gee recently (and hilariously) smacked attorney Kenneth Stern upside the head for filing a lawsuit claiming that the forwarding of a single, 23-word sentence he had posted to a listserv email list constituted copyright infringement. The Court’s legal analysis opens by quoting a phrase — in Chinese characters — from Sun Tzu’s Art of War(the Court translates it in a footnote): “He will win who knows when to fight and when not to fight.” What, you ask, could possibly prompt the Court to cite with approval the theories of an ancient Chinese military general in a copyright infringement case? Here are the facts:
Worried that a forensic accounting firm he had retained was overcharging his client, Stern posted a question to the Consumer Attorneys Association of Los Angeles listserv, asking if anyone else had experienced overbilling problems with the CPAs. Another listserv member emailed the posting to his sister (a non-member), who was a client of the accounting firm. She, in turn, forwarded it to the CPAs. Then it got interesting.
Continue Reading Six Degrees of Sun Tzu: Fair Use and the Art of War