Wednesday, January 27, 2016

Seventh Circuit: Water Scientist Gagged By Lobbying Group's Bogus Copyright Injunction

Alliance for Water Efficiency
Alliance for Water Efficiency v. Fryer, 2015 WL 9287030 (7th Circuit December 22, 2015)

The Alliance for Water Efficiency hired James Fryer to analyze how urban water agencies' programs affect the elasticity of demand for water during droughts.

Alliance didn't like the report and sued Fryer for copyright infringement in an effort to stop him from publishing it.  The Seventh Circuit concluded that the Alliance's claim that it was a copyright owner under the work-for-hire doctrine was baseless and concluded that the suit had no basis for federal question jurisdiction.

However, the Alliance and Fryer had agreed in court that Fryer could publish the report as long as he took the Alliance's name off it.   They also agreed to agree to put their agreement in writing.  When they could not come to an agreement, Alliance sought, and obtained injunctive relief from the U.S. Magistrate Judge.

The Seventh Circuit found diversity jurisdiction.  The Court found that the Alliance and Fryer had entered into an enforceable contract, but that the injunctive relief granted went beyond what the parties agreed. 

The Seventh Circuit vacated the injunction, finding that the injunction had the classic attribute of  a prior restraint: it tells Fryer what he must or must not say in a future publication.  The Seventh Circuit pointed out that there is no compelling national interest involved, and the Alliance could have gotten a declaratory judgment that would set Fryer up for a breach of contract claim for damages if he breached.   After analyzing the First Amendment question, the Seventh Circuit pointed out that it was uneccessary to reach the constitutional question, since neither party had agreed to the injunction and vacated the injunction.

Here is one of James Fryer's reports for Food and Water WatchHere is a newspaper account of how the Alliance tried to push Fryer off the project.

It is disturbing to see that baseless copyright claims are being used in this manner.  According to the donor list on its website, Alliance is backed by the Walton Family Foundation, the Kresge Foundation, and companies that deal with plumbing and appliances such as Whirlpool.  While Food and Water Watch's website has lots of news on the water situation in Flint, the Alliance's is completely silent.  The Alliance seems to be primarily involved in lobbying, its director lobbies on water efficiency in DC and to exempt water conservation credits from income taxation.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2014-2015) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw