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Saturday, March 19, 2011 | 12:35 p.m.
One year ago, U.S. newspapers and broadcasters could feel confident they controlled the news content they created.
It was understood that competing and special-interest websites couldn't appropriate that content and post it without authorization.
When such infringements occurred, they were dealt with swiftly and effectively with a simple phone call or email.
Infringing websites typically had re-posted material out of ignorance they were violating the Copyright Act and agreed to remove the material or replace it with a link to the source newspaper or broadcaster.
Then along came Righthaven LLC of Las Vegas, the self-appointed protector of the newspaper industry from such news sharers.
Some 250 Righthaven lawsuits later, Righthaven's startling achievement is that newspapers now have less -- not more -- protection from copyright infringers.
Righthaven may argue its lawsuits have deterred rampant online infringements of newspaper material -- but there's no proof that infringements it usually targets involving bloggers and special-interest websites ever affected newspaper revenue in the first place.
Keep in mind Righthaven doesn't sue local news competitors of the Review-Journal and the Denver Post and it doesn't sue big news aggregators like Yahoo and Google -- likely because it can't find infringements by these sites.
Back to the lawsuits: Just two of Righthaven's lawsuits have been closed by judges on the merits -- both now resulting in fair use losses for Righthaven and its partners at the Las Vegas Review-Journal.
While these aren't binding precedents upon other judges, these rulings can now be used by special-interest websites to justify their postings of what used to be copyright-infringing content. These, clearly, are setbacks for all newspapers interested in protecting their copyrights.
***
There's little doubt that many of Righthaven's lawsuit targets in fact infringed on copyrights for material that originally appeared in the Review-Journal or the Denver Post.
In these cases, the misappropriated material ran alongside advertising on the infringing websites and sometimes the material wasn't even credited to the Review-Journal or the Post. These sites generally settled, or are settling, the Righthaven lawsuits against them.
Still, if these defendants had fought the suits, Righthaven likely would have won only minimal damages. That's because most of these websites are so obscure that no judge or jury would find their use of the material from the Review-Journal or the Post materially harmed either newspaper -- both of which still offer the material for free on their websites.
There have been some big exceptions like the Drudge Report and Citadel Broadcasting, but most of these lawsuits are against websites few had ever heard of -- cat blogger Allegra Wong's site, for instance.
Another strike against Righthaven is that judges are likely to find copyrights obtained exclusively for the purpose of filing lawsuits are afforded less protection than copyrights held for the usual purpose of delivering the news.
Why aren't more of these defendants fighting Righthaven? Faced with tens of thousands of dollars in legal defense costs, potential damage awards of $150,000 and seizure of their domain names, attorneys usually say it's smarter to settle for a few thousand dollars. This use of the courts as an ATM machine by Righthaven hasn't gone unnoticed by the federal judges presiding over these cases.
***
U.S. District Court for Nevada Judge James Mahan, in striking the latest fair use blow against Righthaven on Friday, announced a decision that to me would have been unthinkable one year ago: A nonprofit was protected by the fair use doctrine in posting an entire Review-Journal story without authorization.
I wasn't the only one thinking that way. In initially responding to the lawsuit at issue, the defendant's attorneys didn't even argue fair use. It was Mahan who put that issue on the table.
If this decision is adopted by other judges and upheld on appeal, it would mean any nonprofit could post without authorization entire stories from the Las Vegas Sun or any other newspaper -- and presumably television and radio reports as well.
Keep in mind the story at issue wasn't a four-paragraph rant about the TSA or a five-paragraph report on a shooting.
For her 33-paragraph June 2010 story on Las Vegas police arresting illegal immigrants on misdemeanor charges, and authorities later deporting them, R-J reporter Lynnette Curtis interviewed multiple sources and clearly spent a good deal of time researching and writing the piece.
Mahan commented Friday that, "No disrespect to the reporter," but Curtis's story was essentially an information piece and didn't involve a level of creativity that would have afforded it greater copyright protection.
If the case had gone to a jury though, jurors may have heard about the amount of planning and work involved in executing such a story. They may also have heard about the substantial costs newspapers face every day to maintain buildings and equipment and to pay their staff to produce these types of stories for both their print and Internet audiences.
Including the editing work, in this case you have a substantial piece of journalism that's clearly of value to the R-J and its readers.
But now, according to Mahan, any nonprofit can appropriate the story for its own use and there's nothing Righthaven or the Review-Journal can do about it.
Mahan, during hearings on Friday and in December on the lawsuit against the nonprofit that posted the story, made it clear a big problem he had with the lawsuit was that it was filed without warning or a takedown notice by Righthaven and that Righthaven's copyright for the story is of dubious value since it only uses its copyrights for lawsuits.
If the Review-Journal had filed the lawsuit, rather than Righthaven, the R-J may have received a more sympathetic hearing since the R-J uses its copyright-protected material for the traditional purpose of delivering the news.
But then, if the R-J had called or emailed the nonprofit, the Center for Intercultural Organizing (CIO) in Portland, Ore., there would have been no lawsuit as the CIO appears to be a responsible organization that would have removed the story.
Mahan made three key points Friday that no doubt have occurred to other judges handling these cases: The lack of a takedown request or order hurt Righthaven's cause, the nonprofit status of the defendant weakened the lawsuit and -- most importantly for pending and future Righthaven cases -- the CIO's use of the story did not harm the market for the R-J story.
That's because, like the vast majority of Righthaven defendants, the CIO operates a special-interest website that in no way competes with or diverts business from the R-J website. In fact, it can be argued that most of these special-interest sites help the R-J and the Denver Post by stimulating interest in the R-J, the Post and their coverage of specialized topics.
Further hurting the cause of the R-J and Righthaven, and probably the Post down the road, is that Righthaven critics are pointing out there can be no market harm proven in these lawsuits since there is no market -- that is, Righthaven owns the copyrights and doesn't use or license them except for lawsuits.
This was a point made to Mahan during Friday's hearing by professor Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California-Berkeley.
Schultz had filed a friend of the court brief listing reasons the suit could be dismissed on fair use grounds and also arguing the Review-Journal had encouraged the online posting by the Oregon center by suggesting that readers share its news online.
Schultz's testimony against Righthaven was sponsored by the online free speech group the Electronic Frontier Foundation (EFF), which is fighting Righthaven and Review-Journal owner Stephens Media LLC in a few other copyright cases.
Kurt Opsahl, an EFF senior staff attorney who attended Friday's hearing, said the two fair use rulings against Righthaven have not weakened the newspaper industry's ability to stop legitimate copyright infringements involving content where there's a true market for the content at issue.
Schultz said the rulings weakening Righthaven's copyright claims should serve as a warning to the newspaper industry about doing business with Righthaven.
For newspapers trying to protect copyrights, "You don't want to give wins to the other guys," he said.
"The newspaper industry has to be careful about supporting the Righthaven business model," Schultz said. "If the newspaper industry is depending on copyright lawsuits, it's in a bad way. It's not going to be a good model. It should not rely on lawsuits."
***
Shawn Mangano, the attorney representing Righthaven during the hearing, said the company is hopeful Friday's fair use ruling against it will be struck down on appeal by the 9th U.S. Circuit Court of Appeals because of what Righthaven calls factual and procedural errors by Mahan.
Righthaven is also hopeful the 9th Circuit will reverse or at least modify Righthaven's first adverse fair use ruling by U.S. District Judge Larry Hicks in a lawsuit over the partial posting of a Review-Journal story by a Las Vegas real state agent.
Righthaven is likely to point out in its appeals that prior to ruling, neither Mahan nor Hicks allowed the parties to gather evidence about the alleged infringements through discovery. This lack of a factual record about the use of the R-J material at issue may undermine those rulings.
***
Friday's ruling against Righthaven was just strike two in what could become an expensive losing streak for the Las Vegas company.
Righthaven and its investors -- Las Vegas attorney Steven Gibson and an affiliate of Stephens Media -- now face seven counterclaims and mounting legal costs in the litigation campaign.
There's a real chance these counterclaims could yield further adverse rulings and awards of hundreds of thousands of dollars in attorneys fees against Righthaven on four points not covered by Mahan on Friday:
• That Righthaven's copyright claims are compromised by the fact that the Review-Journal and the Post encourage the online sharing of their material.
• That Righthaven's standard domain-seizure lawsuit demand will be struck down and judges will use this against Righthaven, perceiving it as an unfair tactic aimed at coercing settlements.
• That Righthaven's copyright assignments from Stephens Media are flawed in that Stephens Media maintains an economic interest in the content covered by the copyrights. This obscure legal point is likely to explode in the coming months as EFF attorneys representing the Democratic Underground and Righthaven attorneys fight over whether the law allows lawsuits over copyrights obtained for the sole purpose of litigation.
• That Righthaven's copyright claims over a Denver Post TSA pat-down photo could be compromised by the fact the photo went viral and the alleged infringers found it on websites other than the Post website -- meaning they had no idea they were infringing on material initially published by the Denver Post. Further complicating these cases is that The Associated Press has reported it distributed the photo at issue to news outlets, further muddying the waters about how anyone was supposed to know it was a Denver Post/Righthaven photo.
***
Elsewhere in the Righthaven litigation campaign, the company continues to run into trouble with its lawsuits because of its policy of suing first and asking questions later.
At least four of its lawsuits in U.S. District Court for Colorado over a Denver Post TSA pat-down photo are giving Righthaven trouble:
• A suit involving North Carolina blogger Brian D. Hill is a case that Righthaven would like to see go away. Only after suing Hill did Righthaven learn Hill has diabetes, hyperactive attention disorder and mild autism -- facts Hill has been communicating to the world on his websites and in an online petition urging U.S. District Judge John L. Kane in Denver to dismiss the suit against him. His attorney, in the meantime, is friendly with the EFF and is drafting a lengthy response to Righthaven's lawsuit that Righthaven will have to deal with if the case isn't settled.
• An attorney for Glenn Church, who was sued in Colorado over the Denver Post photo on Jan. 27, has informed Righthaven that Church had filed for bankruptcy on Dec. 30 in San Jose, Calif. This may mean extra work for Righthaven as it will have to ask the bankruptcy court for permission to continue the litigation -- assuming Church has money or assets that Righthaven wants to go after. Righthaven's lawsuit against Church alleges the photo at issue showed up on Church's website, foolocracy.com.
• Righthaven's lawsuit against Pajamas Media Inc. remains on hold after Pajamas Media Inc. said it was wrongly sued as it is a suspended California corporation that is not operating, has no assets and has no connection to the Pajamas Media website pajamasmedia.com.
• After suing Baltic Enterprises LLC and StrangeCosmos.com, Righthaven was informed by their attorney that "another individual and/or entity has been improperly operating under the name Baltic Enterprises L.L.C." and it's that party Righthaven will have to track down and sue.
***
In other Righthaven developments, U.S. District Judge Gloria Navarro in Las Vegas on Friday granted defendant and counterclaimant Thomas Neveu's motion that the case be put on hold for six months.
Neveu asked for the stay and that his case be sealed because of health reasons. Navarro declined to seal the case.
In a filing of nonopposition to the request for a stay, Righthaven attorneys denied assertions by Neveu that Righthaven had publicly disclosed information about his health situation.
Also, Righthaven dropped its motion for a clerk's default against New Hampshire blogger Christopher Malley and his website EMTCity.com, serving the emergency medical technician community.
Righthaven attorneys disputed charges by Malley's attorneys, who said the default motion violated a rule requiring Righthaven to confer with counsel for defendants before filing such motions. Righthaven attorneys said they had called Malley's counsel with the law firm Lewis and Roca LLP on the day they filed the default motion, but there was no response from Malley's counsel.
With the default motion out of the way, Lewis and Roca filed a response to the lawsuit -- which has already been heavily litigated through motions for dismissal that went against Malley -- with the usual denials and defenses against Righthaven.
These include fair use, that Righthaven's lawsuit is barred by the First Amendment, that the claim is too trivial to pursue, implied license, copyright misuse, alleged fraud upon the Copyright Office, barratry, champerty and that Righthaven lacks standing to sue.
Righthaven has not yet replied to that filing.
A scam is a scam, I don't care how you spin it. It's nice to see that a precedence has been set, and now what they were fighting for came back and bit them where it hurts. I will always say that a new paper story die's after eight hours, and they should be thanking everybody for sending readers to their new paper, when they do a repost of anything they wrote, where the poster copies one or two paragraphs and does a link back to the news paper.
Nobody in New York would ever know anything about what was happening here unless they read a repost of a story that was on a link. A blog or website can send thousands of readers to any news paper.
This whole thing is a black eye on anybody that is involved with it, all the other new papers should be writing stories about what a joke this whole thing is, and what a scam it is...!
Nobody that I know will ever buy a new paper of the RJ News Paper..!
..
Hunting can be quite pleasant -- unless the game shoots back. Then what seemed like a great plan can get dicey.
In most lawsuits, the client might lose, but the attorney walks away unharmed -- and usually with some money. But, Righthaven and its counsel are in Courts which have -- and apply -- Rule 11. So both client and counsel might have to pay for what appears, from their own statements, to have been a plan to use the legal and copyright systems for a "business plan" to make money by filing and settling lawsuits.
It is not that the cases in which people have tried this in other circumstances were not clear or not available. It is not that the "fair use" cases were not clear or not available. And it is not as though they were not warned. But like others with a "plan" and a "holy cause" they have pushed ahead heedlessly, clogging dockets in the pursuit of lucre.
May Righthaven and its counsel get the full measure of justice they deserve.
I often think of the gluttony of some lawyers, but realize they think they're above the six things the Lord hateth, and the seventh His soul detesteth. However, I've wondered if the Reverend Sherman Frederick, also an Episcopal priest, was conflicted in his role as former CEO of Stephens Media with his pastoral duties. Maybe I should ask him.
http://www.trilakes1.us/gitd/aboutUs/cle...
Nice commentary, Mr. Green. I think you hit on every point that so many of us have been debating on your stories. And though you did not mention it specifically, the old concept of "clean hands in equity" can be seen running through many of your observations.
I'm looking forward to your continuing coverage of these actions.
Does this mean the "Cowboy Hat" and the "Mastermind" are going to be demoted again? They are going to be needed for Angle's Congressional race.
Maybe they can come in and make the coffee in the morning. Back in the 50's they used to have a "girl Friday" to catch up on things around the office.
http://www.wordiq.com/definition/His_Gir...
Maybe they can find them something to do like running a show shine stand across from the Moulin Rouge?
A fine analysis and roundup. These continuing stories by Steve Green (and clearly others at the Sun) are, in my view, the reasons that the Sun is nationally recognized for its reporting. Green's stories, again in my view, are well-reported and written, though I know from experience, covering long-term matters can become tedious. I'm glad he's on other stories as well.
With regard to an Appeal to the 9th by Righthaven, there's a lot of risk, according to a lawyer friend of mine (in fact a number of them) "and no likely upside."
Wow.....Green is a legal scholar and genius.
LOL....the whole article is one big joke.
It is just two lousy rulings by the same judge and they have absolutely no weight beyond that judge's court room.
But according to Green, the rulings will leave the entire newspaper industry quaking in its boots.
This is a silly article similar to the goofy rulings by the judge.
The real story will be the higher court rulings.
Green repeats this over and over and over again in Sun stories: "That Righthaven's copyright claims are compromised by the fact that the Review-Journal and the Post encourage the online sharing of their material."
Doing this EXPLICITLY is giving Sun readers the explicit....as in EXPLICIT license to freely copy and paste all Sun stories, images and videos at will.
Green is giving license to anybody to copy and paste Sun material.
Green making this statement voids any Sun claim to copyright.
Well, while I somewhat agree, believe it or not, with "Sarge," whomever he may be, that the "story will be the higher court rulings." That will be, indeed, a "real" story, but Steve Green's continuing coverage is also quite "real" from a news perspective.
To be facetious about Green's coverage, is rude and uncalled for. Most recognize this piece as primarily an analysis, not "hard" news. "Sarge," if you feel it is wrong, biased or otherwise askew, why not write a letter to the editor rebutting it.
Having covered the Federal Courts, albeit a while back, and working with clients involved with them, it is almost absolutely not unusual for rulings of one Judge to have an impact on others. Also, Mr. Green did not suggest, in my view, that the newspaper industry is "quaking in its boots" from this ruling. That industry has a helluvalot more to worry about than this.
I believe that this sort of analysis is important in the news business, as most of it is done by reporters who have been so deeply immersed in the matter and have such solid resources that they can, indeed, be characterized as experts.
Is it possible for you to take just a step back and try to be a bit objective? Even William Buckley could admit and concede at times.
It appears that Righthaven's business plan is flawed. They had counted on everyone settling.
Their plan does not allow for them having costs to move forward with cases or having to defend their self. That is to costly for this type of operation.
I suspect we will see a change of direction by them very soon.
Another great story Mr. Green. I nominate you for a Pultizer. You hit the nail on the head that Righthaven is a nightmare for the entire publishing industry. No self respecting lawfirm would ever file a lawsuit without first knowing who they are suing and taking a risk/benifit analysis. Armed with nothing but a name and an IP address and a screen shot that sum zit faced flunky took in the bowells of Righthaven they threw caution to the wind and went on a suing spree completely disregarding all the unintended consequences that would follow.
Now copyright holders have less protection and Righthaven has themselves to blame. They say success has many fathers and failure is an orphan. Watch Righthaven backers scurry away at a full sprint. Righthaven is doomed.
Green repeats this over and over and over again in Sun stories: "That Righthaven's copyright claims are compromised by the fact that the Review-Journal and the Post encourage the online sharing of their material."
Admittedly, this is not Watergate. However, that WoodStein story is probably the most familiar to all of you. That said, Sarge, if you were reading the daily Washington Post stories on that matter, you would have noticed that while the stories had new ledes daily, more grafs were "old" news or background.
For Sarge:
Thanks as always for your comments.
To clarify one thing, my blog covered rulings by two judges, not one.
Also, as we've told you before, our reporting on lawsuit defendants using the implied license defense (newspapers encouraging users to share content online), in no way suggests the Sun encourages or tolerates copyright infringements.
Keep in mind these implied license arguments are made in the context of websites being sued without first receiving takedown requests.
I'm not an attorney, but I can't imagine someone claiming implied license after 1) receiving and disregarding a takedown request and 2) then being sued for disregarding that request.
Anyone violating our terms of service is likely to hear from us. That's at
http://www.lasvegassun.com/about/useragr...
Personally, I don't see how making it easy for people to share a link to a story via Twitter or Facebook will weaken the claim because those outlets do not convey full content, only a small snippet or headline with a link.
And on the Sun, the email option just sends the headline and a link to the story. Again, I seriously doubt that this weakens a claim.
No, there are other issues in play that will have far more influence.
The RJ is a right-wing rag.
I now block the LV-RJ site and the Denver Post so none of their material reaches my computer directly, and I am certain that many others have taken similar action. I also never post links to their stories, and if I see something came from them, I search for another source and refrain from reading their material. They only hurt small organizations and individuals who were formerly their allies. Never underestimate karmic law.
The judge's ruling is goofy.
He states these items as facts:
1) The LVRJ is not copyright material because it is informational and not entertainment (not creative enough for him)
2) LVRJ stories have no market value beyond the streets of the Las Vegas valley
3) Non-profit sites have a license to infringe copyright at will
Then the goofy judge says if the infringer was a newspaper commerical site and not a non-profit site then that would change everything.
What????????????????????????
A change in the source of infringement would change the above "facts"????????
So then if the infringer was a commerical site then LVRJ story would have market value beyond the Las Vegas valley?????? Why would the source of the infringement change that fact?
So then if the infringer was a commerical site the story would have creative value??? Why would the source of the infringement change that fact?
The judge is nuts and makes no logical sense at all.
I believe he just took the Amicus brief from Jason Schultz and read it for five minutes, rubber stamped it and adopted it as his ruling and added some of his goofy stuff to it.
Why did he do his crazy thing of asking Righthaven to prove why he should not dismiss the case because he stated that the pirate site has a valid fair use defense even though the pirate site never presented a fair use defense? What BS is that? Is that really how a Federal judge is suppose to conduct the law? I pray to God that this judge does not move up to a higher court.
So if one throws out his goofy stuff and then just look at the legs to his ruling then one would conclude the following:
1) Non-profit sites can infringe at will. If the pirate site wanted to clone the Sun site then they could clone the site at will according to the judge
2) Newspaper sites like the Sun have no market value beyond the physical paper route. They have no market value on the Internet according to the judge
3) Anybody, even commerical sites, can infringe via copying and pasting most news stories because almost all news stories are informational and not entertainment according to the judge
Obviously, all the above points are insane and run counter to any plain reading of copyright laws, rulings and history.
The judge got fooled by Jason Schultz and anybody with a brain would have dugged into that piece of fiction (Jason's brief) then they would have seen the false arguments in that brief.
This ruling is silly.
I hope that the 9th Circuit Higher Court slaps it down and properly applies the current understanding of copyright law.
I hope that the newspaper gaints and other industry media leaders will get behind the appeal because if this goofy ruling gets upheld then I will open a non-profit site and just cloning news sites left and right. It will be Matt Drudge on steroids.
SgtRock,
Judge Mahan specifically ruled out your point number 3 above. Point number 1 was also not indicated by his ruling. And your point number 2 misses the meaning of what he meant by different markets. Judge Mahan was referring to a class of readers as a market, not a region. We all know that "region" has no meaning on the Internet.
The ruling by Judge Hicks was even more concise on defining fair use. That one should bite Righthaven hard.
" I can't imagine someone claiming implied license after 1) receiving and disregarding a takedown request and 2) then being sued for disregarding that request."
You don't get it.
One would use the implied license as a defense against a lawsuit.
Once one gives an implied license to use copyright material then that releases that material into the public domain and it can't be retracted.
You have used this type of language over and over again in your stories: "That Righthaven's copyright claims are compromised by the fact that the Review-Journal and the Post encourage the online sharing of their material."
You say that LVRJ has compromised its copyright.
You say that they do that by having buttons that say the word, "Share".
The Sun has buttons, too, that say "Share" on every story.
You are therefore saying that the Sun has compromised its copyright.
A reasonable person would conclude that Sun is explictly telling its readers that it has no copyright claims to its own stories and the stories are part of the public domain and people are free to re-publish anywhere anyway.
It does not matter anyway.
The Sun does not have an active program to search the Internet for infringement. (Funny you will not report that fact).
There are tons of infringement going on. (Funny you will not report that fact either).
I would guess that once in a blue moon that the Sun might send out a take-down notice. I would guess that the Sun has not done that more than 3 times over its 30 plus years of existance (funny you will not report that fact either)even though I would guess that the infringement has occurred many times that level (funny you will not report that fact either).
So it is a moot point.
The Sun does not care if infringement is taking place.
"Judge Mahan specifically ruled out your point number 3 above."
What?
He said that a newspaper story can't be copyright for it is not a creative work (informational and not entertainment).
So if his "fact" is correct then anybody can copy paste any news story or video or audio or whatever and re-publish it to their hearts desire.
He was pretty clear on that point.
I suspect he would take that view on eductional books, how-to books, instructional videos, etc.
None of those have entertainment value either.
Judge Mahan specifically said that had it been an entity such as the Sun or the LA Times that it would be a different circumstance and a claim of infringement would be stronger. That refutes your point number 3.
Any work can be, and is in fact, copyrighted upon creation, with or *without* notice. However, what matters is how a work may be subject to fair use and by whom.
"The ruling by Judge Hicks was even more concise on defining fair use."
Both rulings have this big large flaw.
Both judges came to conclusion on "facts" even though neither party were allowed to present their evidence, experts or arguments about what they thought those facts were.
And those facts are not clear simple "facts" either.
There is this thing called, Due Process. It is a basic legal right.
Just on that alone the 9th Circuit will throw the cases back to the lower court.
Also both rulings are saying that news works can't be copyright unless they are either entertainment or editorials.
That would mean that CBS could not copyright most of 60 minutes other than Rooney's segment.
"Judge Mahan specifically said that had it been an entity such as the Sun or the LA Times that it would be a different circumstance and a claim of infringement would be stronger. That refutes your point number 3."
That is silly.
You are correct that a non-profit would have more leeway in fair use world over a for-profit site.
But that does not change the underlying facts.
Is a news article creative work or not?
It is very very very very simple question.
Is a news article creative work or not?
Who cares if a nonprofit site wants to copy it? Who cares if a for-profit site wants to copy it?
Is a news article creative work or not?
It is creative work or it is not creative work.
If it is not creative work then it does not matter. You can't copyright that. Anybody can use it and whenever they want to. For-profit sites can copy it. Non-profit sites can copy it. There is no copyright protection for non-creative work.
The source of the user does have an impact on fair use but it does not give free license to copy and paste the whole work.
This non-profit site has a goal to educate its members on a certain topic which is good goal for society.
It could accomplished that goal of education by copying and pasting a few sentences of the LVRJ story, citing the LVRJ as the owner and linking back to the LVRJ story so that its members can be educated. That is fair use.
It did not have to copy and paste the whole article on its website to accomplish that goal to educate its members.
Being a non-profit should not give it free license to infringe. However, if you are in this judge's courtroom, if you are a non-profit then infringe at will.
SgtRock,
You are flailing about now hoping to catch hold of something of substance. But what you seem to refuse to admit is that Righthaven's business model and tactics are offensive to the bench, and indeed to most reasonable people. That was the basis of equity courts in bygone days.
Even when Righthaven might have the letter of the law on their side (and they have on occasion) they have acted outside the spirit of the law. Judges do not ignore that.
In short, Righthaven does not come to the court with clean hands. They seek justice when they have in fact denied just treatment to those they seek it from.
the new publisher of the r-j is a sleazeball. he COULD and SHOULD have put an end to these lawsuits.
" letter of the law on their side (and they have on occasion) they have acted outside the spirit of the law"
Talk about flailing about. You are stating that the letter of the law conflicts with the spirit of the law.
Huh?
How can the letter of the law conflict with the spirit of law?
Basic question: Are most everyday of the week standard news articles creative work?
This story from the current front page would appear to be a purely factual report and would probably have little copyright protection from fair use in its entirety other than use by a competitor: http://www.lasvegassun.com/news/2011/mar...
Other than that example, we would need to agree to the definition of terms used before I would go further.
I don't know how your newspapers do it, but I live in Martinsville, VA where the Nascar races are the first week in April and again in the fall. You might want to check with our newspaper to see how they do it, but I have noticed in our newspaper, they have this on their photos: Copyright 2011 and Martinsville Bulletin, Inc written on their photos. You'll have to click on their photos 2 times to see what I mean. The first photo is small, you click on the photo, it's larger, click the second time, and it's really large, but you get this message on the photo. If that message is on your photo, it will tell everyone that it belongs to you. You might want to call or email someone to see how they do it. Here's a link to one of these online newspapers:
http://www.martinsvillebulletin.com/inde...
I would agree that has probably no copyright protection.
Anybody could copy and paste that including a direct competitor for the writer probably copied and pasted that information from a police report.
A news article report box scores from today's basketball games do not have copyright protection.
Can you take a look at these three and give your opinion on them (I know you hate the LVRJ but please give your opinion on that one, too. Let's be fair and balanced.)?
http://www.lasvegassun.com/news/2011/mar...
http://www.lasvegassun.com/news/2011/mar...
http://www.lvrj.com/news/questions-gener...
I'm not entirely sure what opinion you want. All three are essentially factual reports. That said, all three required a certain amount of research and consolidation of facts. I would say that the first link is the most basic of the three in terms of raw reporting. It would be a toss up in my opinion as which of the other two stories required more research, though the RJ story appeared to rely more on interviews than Mr. Green's story. Both stories have a "value-added" element in that additional research was used.
But overall I would have to say that all three are basically factual accounts and do not rely upon additional commentary to convey the full import or meaning of the story.
(Mr. Green, I do not mean to undervalue your work. That was a well written story and a fine example of what I consider to be objective reporting, as are all of your stories.)
The first story has a universal market, and AP, and its subscribers would obviously be harmed by unauthorized use that exceeds the bounds of "fair use."
The next two are problematic now because of Judge Mahan's ruling. I have my own disagreements with some details of it, but the main fault lies with Righthaven's perceived heavy-handed actions. Under other circumstances I, too, would say that only a very narrow set of conditions would allow for the use of either in their entirety. But because Righthaven has ignored the spirit of the law, and has insisted upon using the courts for profit, much of the protection that either story should enjoy has been greatly weakened.
"The next two are problematic now because of Judge Mahan's ruling."
OH....are you saying that the judge is setting a new precedent?
I think you just knock a home run for Righthaven.
He and Hicks are setting a new higher standard for what is that has no standing currently in the statutory or case law.
Neither cited any case law to support this new higher standard.
I am sure that the higher court will knock that down.
Just a FYI, the 3rd link is what Mahan's ruling was on.
Judge Hicks' ruling was solid fair use, in my opinion, and if there is any problem it will be in procedure, not law. Judge Mahan's extended the boundaries in some areas, but I don't think I would say he broke new ground.
The biggest problem that both Hicks and Mahan had was with Righthaven using the courts as a revenue center. Mahan called them out on it as hard as he could without actually accusing them of unethical conduct. Righthaven's business model and conduct is an offense to common decency and our judicial system. The courts *will* address an injustice when they see it, and Righthaven appears to have no understanding of the concept of justice.
Judge Mahan is bringing "good faith" into play. Had Righthaven issued a take-down notice to CIO, and CIO failed to comply, then Mahan probably would have ruled in Righthaven's favor. I have no doubt he would have ruled in the RJ's favor had they issued the take-down and had it ignored.
It is Righthaven itself that is creating an issue that is expanding the definition of "fair use" because they are forcing the issue of "good faith" to be called into play.
Mr. Green explained this clearly in this blog post that we are commenting on.
"Judge Hicks' ruling was solid fair use, in my opinion, and if there is any problem it will be in procedure, not law"
Both set a new higher standard for what is consider to be creative work.
They both stated that for it be creative that one has to either have personal commentary or editorial opinon or inject entertainment value in the article.
They don't cite any case law to support that.
That is new precedent.
That is upheld then most news articles whether from AP or LVRJ or the Sun will not protected by copyright law and whoever wants to copy and paste will be able to copy and paste to their hearts desire.
Only creative work can have copyright.
The Copyright Law of 1976 clearly lays out the Doctrine of Fair Use and lists the four (much discussed) criteria to be considered. The defendant easily meets three of the four criteria, yet LVJR Fanboy Sgt. Rock thinks he has a case, meeting only one(1) of the four criteria. Boftx was right -- he's flailing.
Righthaven's future is about as rosy as a Libyan air defense installation at the end of a Tomahawk cruise missile trajectory. But Fanboy Rock is doubling down his foolish bets on Righthaven. He's probably getting ready to invest in Japanese spinach, too.
Thanks for the 411, DTJ, I am sure no nobody has thought of the 4 criteria. Wow....you are sooooooo smart.....you are on the genius level.
Most of the time in courts the two sides get to offer evidence, experts and arguments to support or fight the other side on what they think the facts are or are not.
Not in these two cases, the judges just skipped that part and decided the facts for themselves. They are probably genius like yourself and are experts in market value, creative works and the newspaper business.
You have heard of this thingy called, Due Process...genius that you are.
You are pretty clueless that on how these two judges decided what the facts are and how they decided the 4 criteria should applied pretty much opens up almost all news articles to be copied and pasted on much of the Internet at will and without restriction.
I am sure that what Congress intended and what years of case law has previously stated on this subject. It has your stamp of approval. You are genius. That is all we need. Your approval...genius.
Fanboy must have missed my parenthetical "much discussed." Either that, or he willfully ignored it, just as he continues to ignore -- and fails to address -- the fact that he and Righthaven are on the *losing* side of a tally of those fab four criteria, 3 - 1.
"...You are pretty clueless that on how these two judges decided..."
This from a guy who tried to tell us that the two different judges were one and the same judge??
It's past your bedtime, LVJR Fanboy. Mine too. Time to change your Depends and go to sleep. Rock-a-bye-baby.
Over and out, everyone else.
DTJ: Do you agree with Mr. Green's assessment of the effect of the ruling if it is upheld at the higher court?
Waiting for your expert genius level thinking.
Righthaven says it costs too much to send take-down notices but the cost is minuscule compared to the enormous cost they are about to face over appealing these cases and fighting the mounting counter-suits.
Let this be a lesson to all copyright holders. Send the take-down letter before proceeding with a lawsuit.
What is somewhat ironic, or amazing, or perplexing, is that with only a couple of minor changes to the business model Righthaven could have provided a valuable service to the industry and might have possibly been profitable. Had they been configured as purely a search service that found violations, and that clients would sue on their own behalf with no copyright transfer, etc., then I doubt anyone would object.
However, the business model adopted can only work by suing first with no take-down request since the vast majority of alleged offenders would honor such a request.
It is the litigation for profit aspect that has upset the bench and prompted much broader rulings of what is included in "fair use" as a means to counteract the perceived injustice of Righthaven's actions.
Dear Sarge If you want to stop infringement send out a take-down notice if it is not removed then sue. If the rj were to do that no one would have a problem with that tactic . Any resulting suit would be more likely to be decided in the rjs favor. Public outcry would be in your favor . It is time to change your business plan.
Fair use or fair practice, is utilization of a portion of a copyrighted work "as is" for purposes of "parody, news-reporting, research, and education about such copyrighted work without the permission of the author." The two defendants that prevailed seem to have a strong case since they have used the copyrighted material only in the above context. Suffice to say that Righthaven, is facing an uphill and losing battle.
> The judge's ruling is goofy.
In your opinion --- and your opinion recently got you fired. So lets give your opinion all the weight it deserves. none.
why do you silence your critics on the RJ site? Not man enough to take the heat for your inane babbling? lol.
Steve Green. The Las Vegas Sun should sue Rigthaven and Stephens Media for the damage they have done to you and the entire newspaper industry.
Sorry it was never about protecting newspapers.
That ambulance chasing Gibson thought he had discovered money machine for himself.
Has anyone ever noticed that Sarge could argue with a wall?
Why bother?
Sgt.,
Whether or not I agree with all, or even parts, of Steve Green's assessment (or all, or parts of Judge Mahan's decision, for that matter), is neither here nor there. What I am animated by is that Righthaven is on the WRONG side of the Fair Use Doctrine with is coercion and extortion tactics. May the very public flameouts of both Righthaven and the your RJ be particularly humiliating.
"I'm not an attorney, but I can't imagine someone claiming implied license after 1) receiving and disregarding a takedown request and 2) then being sued for disregarding that request."
The legality and effectiveness of a takedown notice probably hinges on the extent of the implied license and whether or not the license is revocable. This uncertainty is easily resolved by attaching an express license to all content.
The act of viewing a web page involves an implied license--copying is required by the technology--but I don't know whether viewing a web page on a public web site constitutes acceptance of an express site-wide license. It certainly wasn't necessary to read and accept the terms of the Las Vegas Sun's "Reader Agreement" before viewing this article.
As you noted, not all content published by a newspaper is owned by the newspaper. It might be unlawful for a newspaper to issue a takedown notice with respect to third-party content. Similarly, the newspaper might not have standing to sue for copyright infringement. I suppose it depends on the rights assigned to the newspaper by the third party's license agreement.
Trev
You have an excellent point. Simply viewing a website that is readily displayed does not subject the viewer to any kind of terms of use. When we register ourselves as commenters we do agree to abide by the paper's terms of use as outlined when we "agree" to all the terms listed. But for someone simply viewing a website that is offered freely there has been no agreement between the user and the website in question.
SgtRock,
"Once one gives an implied license to use copyright material then that releases that material into the public domain and it can't be retracted."
That's some very weak reasoning, and your conclusion is simply not sound. If I were you, I would focus on the extent of the implied license with respect to customary practices on public computer networks. You can refer to 21 years of practice on the World Wide Web and 31 years of practice on Usenet. The Internet is old, with a well-established tradition of publishing and sharing copyrighted works. It shouldn't be difficult to come up with a logically sound argument for the extent of an implied license with respect to newspapers operating on the Internet.
"Simply viewing a website that is readily displayed does not subject the viewer to any kind of terms of use."
I think the Sun and the Sun's lawyers would disagree.
But heck.....everybody here seems to want the Internet this to be this wild free-for-all and just let copyright law go to hell.
Here is the reader agreement that you are agreeing to by just viewing the site.
http://www.lasvegassun.com/about/useragr...
It starts: "Use of this site signifies your agreement with the following terms of use. If you do not agree with any of these terms of use, please do not use this site."
If that was the case I could make a website that simply states "By viewing this site you agree to hand over all worldly possessions" then start suing everyone who visits my website.
Oops better not give Righthaven any ideas.
Perhaps this free-for-all will change the business.
Perhaps, news site should lock down their sites and reguire login's and perhaps deliever their material not via HTML and other standard technology.
That would prevent lazy pirates from stealing material and posting on their own sites.
I'm going to chime in on the implied license question.
If you look at all of the means available to share a story on the Sun, each one (with the notable exception of a few RSS feeds such this blog's) sends only the headline and sometimes a sentence or two along with a link to the full story. Clearly the Sun is saying "share the location of the story."
Combine this with the fact that there is a clear copyright notice on every page of the Sun and I don't think any judge would uphold an implied license defense.
That said, none of the foregoing would preclude fair use.
SgtRock,
"Here is the reader agreement that you are agreeing to by just viewing the site."
At issue is whether or not "just viewing the site" constitutes acceptance of a browse-wrap license. Is the link to the "Reader Agreement" prominently displayed? Were similar terms prominently displayed by the copyright owners named in the article?
Papers that really want their works protected should at least make everyone who views the site register before proceeding then they would have a legally binding agreement. I doubt simply having a terms of use by simply viewing a site would hold up in court. However, copyrights are still protected whether there are stated terms of use or not.
The argument here really isn't are the works covered under copyright because the Bern agreement, which the United States is a signatory, everything is automatically copyrighted. The real argument here is how far fair use goes. To Righthaven and others copyrighters they want an extremely narrow view of fair use that does not extend beyond what the copyright owner allows, but others see a wider view of fair use that has allowances even without the copyright owners permission.
We are in a battle right not that will ultimately define these boundaries and in the age of an open Internet it is in everyones best interest, including copyright holders who also benefit from an open Internet, that fair use be widely defined.
Rock
"Perhaps, news site should lock down their sites and reguire login's and perhaps deliever their material not via HTML and other standard technology."
Yes some are doing this like the "Times of London" that basically divorced themselves from the Internet only to see their readership drop 90%, and the loss of relevancy because no one is reading them, nor linking to them and they are not part of the general Internet discussion. So yes a paper can lock up all their content but deny themselves and their advertisers the benefit of being part of the open Internet.
Again, I wonder how many posting here are, or have been defendants in this litigation. It has nothing to do with the validity of comments, just a curiousity.
With regard to the issue of takedown letters, I certainly would have complied had I received one, as I've said among other things a number of times in comments on Mr. Green's articles. My view is that most would have acted similarly.
However, it is worth repeating that major newspapers, even middle market ones don't seem to care at this point about this issue. What's interesting to me is the question of why: Do they believe that the reposting in toto of articles drives traffic to their sites? Do they think that this sort of litigation creates ill will among readers? Or do they just believe that's it's not a financially viable proposition?
My greatest concern is the quandary in which newspapers find themselves today, again as I've said before. I'm looking forward to the NYT being successful on its pay model, as it seems to be the best bet for the industry.
With regard to this story, and others on copyright, I would hope that readers are availing themselves of other fine reporting on this venue.
technically the RJ could plug this hole in a second by not allowing any right click activities on their site --- forcing people to use their official "share" links. then if their full copy appeared someplace they'd have the argument of malice of forethought.
why don't they? perhaps they see the true value of an uncontested lawsuit, like Reichaven does. of course the management dinosaurs that roam the raped earth down on Bonanza aren't very bright --- or technically savvy or they could of had their cake and eaten it too. no, they'd rather be rewarded through laziness and intimidation using the courts as their foil.
the two partners will eventually run themselves into a corner. until that happens it's fun to read Sherm's -- erm, I mean Rock's flailing about and the aptly termed tar babies the RJ and Reichaven are procreating fighting back.
sdstern
Yes, in fact if I was ever to recieve a takedown notice I would comply and probably even if I was within fair use just out of courtesy to the copyright holder.
You are correct in your observations that most papers don't care or at least don't try and stop it because they see the tremendous value in bloggers linking to their stories and are willing to allow a reasonable amount of posting of their stories and images so long as there is a link-back.
As a blogger I have ALWAYS tried to give a benefit back to the news source by only posting snippets and always linking back. That is why I feel so betrayed by these lawsuits because the blogging community has been a tremendous benefit to them and then they turn around and sue us for it. They have bitten the hand that feeds them.
Righthaven was a failed experiment by Stephens Media. Its time for them to own up to the failure by pulling the plug on Righthaven.
Newspapers now have a mighty fine mess to clean up because their entire industry has been put in jeopardy by Righthaven's irresponsible rein of terror.
I'm going to second Ken on this.
I also run blogs, and make it a point to always use a minimal excerpt and link back, and even encourage readers to visit the original story.
Like Ken I am most upset by Righthaven going after marginal cases involving partial use without warning. Those cases appear to have been making a good faith effort to play by the (undefined) rules.
Had Righthaven gone after only full reproduction, especially without attribution, then I doubt any responsible blogger would be upset.
I know from my own experience with the Sun that they understand and embrace the Internet culture.
It's such an interesting conundrum. Las Vegas and Nevada lead the nation in any number of perfectly dreadful economic indicators. There are folks out there who no doubt see references in "National" news to our city and state, e.g. The New York Times, WSJ, AP and so forth. They perhaps don't think of going to the Sun or the RJ to look at local coverage of these issue, even if a "blog" or some other venue is viewed nationally. Why not give 'em the coverage, the full story. I don't know of anyone, for example, in DC, Chicago, Miami, New York and a number of others who look to the RJ for Vegas or Nevada news. On the other hand, my understanding is from clients and other reporters, they do look to the Sun for this copyright coverage, and, by the way, Jon Ralston who no infrequently appears on the cable news stations. With regard to the apparently single supporter on this venue of the litigation, whether he's an attorney, an egocentric or just simply a person seeking attention, his view apparently is one that's take as one of a cypher...my view, those on the other side of the issue, should simply ignore him, not respond.
Ultimately, it'll be settled in Court, and I doubt the Supreme Court as it's so costly to go there, and it'll be settled with either a diminimus fine or against the plaintiffs (RH and the RJ) and then it's done.
I again encourage, invite or otherwise invite all for a drink at Charlie's Down Under and expect Sarge to show up.
The main effect Righthaven's litigation in concert with the Las Vegas Review Journal has had on me is that I don't click on the LVRJ website...too bad, I used to enjoy reading Vin S. pieces...I didn't know the Post was in bed with these clowns, so there's another site I will avoid like the plague.
Not only will Righthaven chase after ambulances. . . they are even chasing after the technicians inside the ambulances. . .
Great piece, thanks for taking the time to examine the issue of digital piracy from multiple perspectives.
The publishing industry faces sizable challenges from both an economic and piracy standpoint--the last thing the industry needs is more turmoil. As Mr. Green hints at in the story, using litigation to ambush web site owners who have illegally posted content is like fighting fire with oil; it serves to only deepen the rift between content creators and site owners. Why? Using litigation as the primary tool to stop content piracy should be a last resort, not the opening move...
As the co-founder and CEO of Attributor, we think there is a better way to approach this issue. We've created technology that not only helps publishers track piracy but also successfully resolve copying issues without resorting first to legal action.
At the end of 2010 we conducted a real world experiment around this topic. On behalf of several leading news organizations, we contacted 107 commercial sites copying full articles on a regular basis and presented them with the option of either licensing or removing the content, seeking to engage in a conversation first and foremost. If the site chose to ignore the multiple requests to establish a dialogue, we contacted the advertising networks, requesting they remove their ads for only the pages copying content.
At the conclusion of these two steps, 75 percent agreed to either pursue licensing agreements or remove content voluntarily. The effectiveness of this process greatly reduces the need for unannounced and unanticipated litigation. It also provides a basis for establishing that due process was served.
This is, sadly, not an issue that will go away anytime soon. If the anti-piracy practices described above continue to take place, then we all will lose; content creators will feel ripped off, publishers will feel squeezed economically and companies like the above mentioned will continue to abuse the system.
Jim Pitkow, CEO Attributor