By Raïssa Robles
“She can sue me.”
If you recall, this is what Senator Vicente Sotto III said after it emerged that he might have plagiarized a US blogger in a speech he made before the Senate.
Sotto first publicly issued this challenge to blogger Sarah Pope after his chief-of-staff Hector Villanueva had gotten in touch with Pope in connection with Sotto’s lifting of certain passages word for word from her blog The healthyhomeeconomist .
Senator Sotto then told the Philippine Daily Inquirer, the country’s largest newspaper:
“Ang tanong doon may copyright ba iyong blog niya? Kung may copyright iyong blog niya, either dapat mag sorry ako or mag-apologize ako. Or idemanda niya ako [The question is, is her blog covered by a copyright? If the blog has copyright, either I say sorry or I apologize. Or she can sue me],” said Sotto.
Sotto’s office then pointed out that the Philippines has no law against plagiarism. Therefore, Sotto can’t be sued in court.
What Sotto and his staff forgot was that by the time Sotto had delivered all three of his speeches on the Senate floor, he had plagiarized from four US-hosted blogs, one briefing paper from the US and one speech by a dead US Senator.
All these works are covered by US Copyright Law. Even the copyright on Senator Robert Kennedy’s speech has not lapsed to this day.
You can read my previous stories on Sotto’s lifting from US-based bloggers, a briefing paper and a speech:
US blogs are covered by copyright
According to a Filipino-American lawyer named Steve – yes, the same Steve who had tipped me off early this year about the California property of former Chief Justice Renator Corona’s daughter Charina – well, Steve told me that blogs in the US are definitely covered by copyright.
I also asked the same question of JJ Disini, who holds a Master of Laws degree from Harvard Law School and who specializes in Technology Law and Intellectual Property. Disini, who teaches at the University of the Philippines College of Law, told me:
US law protects blogs via copyright.
In a separate interview, I asked Senator Sotto’s Chief-of Staff Hector Villacorta whether the senator was aware that American bloggers’ online websites and content are covered by copyright. Villacorta who is a lawyer replied to me:
I don’t know. I’m not familiar with the US law on copyright.
If US bloggers sue, they can attach Sotto’s Nevada properties
Since Senator Sotto owns two real properties in Nevada, USA, the Fil-Am lawyer named Steve pointed out that Sotto indeed has a physical presence in the US through his two real properties and is therefore well within the reach of US law.
Steve explained to me that if, say, Pope sues Sotto for copyright infringement:
Assuming that Ms. Pope sues and she prevails in the civil suit, the penalty is typically actual damages OR statutory damages. Statutory damage may range from the sum of not less than $750 or not more than $30,000 as the court considers just.
Enforcement of this judgment may be had via writ of execution thru attachment, garnishment etc…
So if Ms. Pope is made aware that Sen. Sotto has properties in the US, yes Ms. Pope may very well attach said properties.
I asked Atty. Villacorta whether Senator Sotto is aware that in case US bloggers who might accuse him of copyright infringement sue him for it, his two properties could be garnished in the suit.
Villacorta replied to me today:
No comment ako dahil hindi ako familiar sa US law tungkol sa property. [No comment, because I'm not familiar with US property law.]
I asked the same question of Atty. Disini, which I worded this way: Sotto owns two houses in Nevada. Does his having these put him within reach of any copyright infringement suit demanding civil liabilities if plagiarized bloggers sue?
Prof. Disini replied:
If one sues successfully for infringement then those assets can be levied upon to satisfy the judgment.
Disini then added:
The presence of properties is not enough for a US court to assume jurisdiction. He (Sotto) must be served with summons.
That’s a good question. And alam ko for foreign companies, kung may office sila doon, the address can be used as a way to serve summons.That’s what happened to Samsung (in Apple’s copyright infringement lawsuit against it). [I know that for foreign companies, if they have an office in the US, the address can be used as a way to serve summons. ]
The US subsidiary of Samsung in New York was used as a way to acquire jurisdiction.
Disini also said that lawsuits involving copyright is a “federal court action, not a state charge.”
He also recalled that in one copyright infringement case, the Immigration and Customs Enforcement (ICE) agency seized the US-registered domain names. Disini said that:
By analogy, yon and puwedeng gawin mo. Walang presence siya doon, pero kukunin mo assets doon. [By analogy, that is what you can do in this copyright infringement case against Sotto. He has no presence in the US but you will take from his US assets.]
What American bloggers will have to prove against Sotto
Steve the Fil-Am lawyer, however, made it very clear to me that he was not going to evaluate the chances of success of a Copyright Infringement Suit if this is lodged against Senator Sotto by American bloggers.
The fact alone that Sen Sotto failed to attribute to Ms. Pope whatever he took from the blog is not a cognizable cause of action by itself. The right to attribution is not a protected right under the US Copyright Act (USCA). [See UMG Recordings, Inc. v. Disco Azteca Distributors, Inc., E.D.Cal.2006, 446 F.Supp.2d 1164, 80 U.S.P.Q.2d] 1191.
So Ms. Pope has to prove one of the 6 enumerations in 17 USCA 106 above indicated for her to prevail in an infringement lawsuit.
This means, Steve said, Ms.Pope and the other plagiarized bloggers would have to demonstrate that Senator Sotto infringed on ANY ONE OF THESE SIX BASIC RIGHTS of a copyright owner WITHOUT AUTHORIZATION from the owner. The six basic rights of a copyright owner are the right:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Steve said he doesn’t know how successful a Copyright Infringement suit would be against Senator Sotto.
Separately, Atty. Disini, in the course of my interview, emphasized to me that there is a big difference between the charge of plagiarism and copyright infringement. Senator Sotto and Atty Villacorta had both emphasized to the public earlier that Sotto cannot be charged for plagiarizing US blogs because the Philippines has no law punishing plagiarism.
Atty Disini explained:
Plagiarism is about attribution. Copyright is about giving compensation for infringement.
Plagiarism is bad manners and copyright infringement is about violation of the law.
Could a copyright infringement suit against a sitting senator prosper? Could it be proven that he profited from the copying?
US jurisprudence say that the benefits derived from the copying need not even be commercial in nature. Yes, Senator Sotto did not profit from the copying because there was no commercial transaction involved. However, Senator Sotto through those speeches had sought to enhance his standing as a lawmaker. And as a lawmaker, he is being paid by the State. It could therefore be said that Senator Sotto profited personally from the huge chunks of paragraphs that he used from various American bloggers without their consent and without attribution.
In fact, two of them have already complained that their words were twisted out of context by Senator Sotto.
One thing I’m sure, though, if the US bloggers collectively sue, they could give the senator a lot of headache because he would have to make sure his US properties are safe from garnishment.
Sotto’s US properties
Sotto owns two properties in Nevada collectively worth P29 million (or US$690,476 at the current exchange rate of 42 pesos per US dollar). He declared both properties in his Statement of Assets, Liabilities and Net Worth (SALN) in a detailed manner. I would like to commend Sotto for that.
Sotto declared in his SALN for 2011 filed this year that he had acquired the P19,369,442 house & lot along Vital Crest Street, Las Vegas in the year 2008 and the P10,125,000,house & lot at 10151 Tumbling Tree Street also in Las Vegas in 2007.
Sotto rejoined government in July 2008 as acting chairman and director of the Dangerous Drug Board. However, it is general knowledge that he was making good money as a comedian and commercial endorser. In other words, he could well afford both properties.
How he acquired these properties is not the issue here.
The issue at bar here is that these two properties currently give him a physical presence in the US and that makes him vulnerable to lawsuits filed there.
In closing, I would like to tell everyone that I had asked Steve the Fil-Am lawyer whether I could reveal his real identity. Steve replied:
I am tempted by the potential publicity once you mention my name and I would probably enjoy it. :) But I prefer to be silently helping you out.
All I can say, Steve, is – the Filipino people thank you.
Steve is a member of Cyber Plaza Miranda, the active and growing community of Filipinos worldwide who congregate on this blog to share opinions and information.
Cyber Plaza Miranda is a striking example of how the Internet and social media can be used for change. And one that the Cybercrime Law – particularly due to Sotto’s midnight insertion of the crime of online libel – could stifle.
Dear Senator Sotto, it isn’t going to happen.