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Wednesday, Aug. 18, 2010 | 10:50 a.m.
Sun archives
- Righthaven reaches settlements in 2 cases over R-J copyrights (8-12-2010)
- Righthaven sues Democratic Underground website over R-J posting (8-11-2010)
- 5 more websites sued over R-J story copyrights (8-10-2010)
- Websites, bloggers make moves to avoid Righthaven lawsuits (8-9-2010)
- Righthaven continues suits over R-J copyrights; 91 total (8-6-2010)
- State Democratic Party fighting R-J copyright lawsuit (8-5-2010)
- Legal attack dog sicked on websites accused of violating R-J copyrights (8-4-2010)
- Some targets of Righthaven lawsuits fighting back (8-4-2010)
- Are website copyright violations hurting newspapers' bottom line? (8-4-2010)
- Defendants in R-J copyright lawsuits speak out (8-4-2010)
- Five more R-J copyright lawsuits filed (8-3-2010)
- R-J mob source hit with copyright suit (7-27-2010)
- More copyright lawsuits filed over Review-Journal stories (7-23-2010)
- Conservative website among 3 sued over R-J copyrights (7-20-2010)
- 3 suits over alleged R-J copyright infringements bring total to 72 (7-16-10)
- 5 more suits filed over alleged R-J copyright violations (7-15-10)
- Nevada Democratic Party hit with R-J copyright lawsuit (7-9-10)
- 5 more websites face R-J copyright lawsuits (7-8-10)
- Six more suits filed over R-J copyrights (7-1-10)
- Three more websites hit with R-J copyright suits (6-29-10)
- R-J copyright suit filed against newspaper source (6-25-10)
- 3 more R-J copyright suits filed; defendant responds (6-10-10)
- 8 more websites sued over R-J copyrights; 34 total (6-5-10)
- Former news anchor among targets of new R-J copyright suits (5-30-10)
- 4 more copyright suits over R-J stories brings total to 22 (5-28-10)
- 4 more sites sued over alleged R-J copyright infringements (5-20-10)
- 14th website sued over R-J copyright allegations (5-17-10)
- More suits over alleged R-J copyrights bring number to 13 (5-14-10)
- Suits accuse groups of posting copyrighted R-J stories (5-5-10)
- Two more websites sued over posting of R-J stories (5-3-10)
- Sixth copyright suit filed over R-J stories on websites (4-26-10)
- 3 copyright suits filed over R-J stories on Web sites (4-16-10)
- Suits accuse 2 groups of posting copyrighted R-J stories online (3-17-10)
New defenses are being asserted by websites and bloggers facing copyright infringement lawsuits for online postings of material from the Las Vegas Review-Journal.
The Review-Journal's copyright enforcement partner, Las Vegas company Righthaven LLC, has sued 98 North American websites and blogsites in federal court in Las Vegas since March -- typically demanding $75,000 in damages and forfeiture of the defendants' website domain names.
Attorneys say the Righthaven lawsuits are unprecedented in recent memory because, in the past, newspapers dealt with online copyright infringement by simply asking infringing websites to remove the infringing material and to replace it with a link to the source newspaper. Most Righthaven defendants say they were sued without warning and without anyone from the Review-Journal informing them there was a concern with their use of Review-Journal material.
None of the suits has reached the point where a judge has ruled on their validity. Defense attorneys usually argue that Righthaven has no right to sue since it didn't own the copyrights at the time of the alleged infringement -- Righthaven's procedure is to find an infringement, buy the copyright from the R-J and then sue over the retroactive infringement.
Defense attorneys also typically argue the use of the material is protected as fair use and, in the case of out-of-state defendants, that the Nevada court lacks jurisdiction over them.
In some cases, defendants argue they are not liable because the material was posted without their consent by third-party message board users.
Twenty-two of the suits have been settled and closed under generally undisclosed terms, though court filings revealed two defendants paid $2,185 and $5,000, respectively, to close their cases. The settling defendants haven't had to forfeit their website domain names.
Some defendants have hired attorneys and are fighting back.
New court filings show attorneys may argue that the Righthaven lawsuits are meritless since the Review-Journal website encouraged the online sharing of R-J stories -- providing an implied license to websites and bloggers displaying the material.
That's the argument made Tuesday by attorneys for Jan Klerks of Chicago, who was sued May 19 after an R-J story was posted on his website www.skyscrapercity.com, a nonprofit site covering skyscrapers and urban development.
Klerks is represented by attorneys with the Las Vegas office of the law firm Lewis and Roca LLP, which is representing several Righthaven defendants and in the past has called the Righthaven suits a campaign involving frivolous lawsuits that amounts to a shakedown aimed at coercing settlements from small bloggers and website operators.
In Klerks' case, they argued in court papers Tuesday that Klerks may offer a fair use defense since the story at issue was posted by a third party on a forum and that Klerks did not profit from the posting.
They also wrote: "As with every article that Righthaven is suing on, the allegedly infringed work was available for free on the Las Vegas Review-Journal’s website and is still available for free by conducting a Google search on the title of the article. There is no harm, no damages to Righthaven ..."
Klerks may potentially "establish an implied license," his attorneys also wrote.
"The Las Vegas Review-Journal, offered the allegedly infringed work to the world for free when it was originally published. It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. The Las Vegas Review-Journal web site also enables third parties to 'right click' and copy the text of articles on the site. Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement," the Lewis and Roca attorneys wrote.
Lewis and Roca's attorneys cited as precedent an implied license ruling in 2006 by U.S. District Judge Robert Jones in Las Vegas, who threw out a copyright infringement lawsuit filed against Google by Las Vegas attorney Blake A. Field.
Field claimed Google was infringing on his copyrights by caching material from his website and then linking to his website.
But Google charged Field had manufactured a $2.55 million copyright claim against Google by registering copyrights for 51 "literary works" and then requesting that Google's robot visit and index the pages in his website so they could be included in Google's search results.
"Field himself then clicked on the 'cached' links for each of the pages containing his copyrighted works and retrieved a copy of those pages from Google's system cache," Google attorneys wrote in court papers. "Remarkably, Field now claims in this lawsuit that by allowing him to retrieve copies of his own works at his express request, Google has infringed his copyrights.
"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.
Jones not only sided with Google in the case, but ordered Field to pay Google $25,000 in attorneys' fees.
In a separate Righthaven case, Lewis and Roca attorneys said it should be dismissed in part because the damages at most amounted to 1 cent.
In that case, Lehi, Utah, company Vote For The Worst LLC was sued over a posting involving a Review-Journal story about an American Idol TV show event in Las Vegas.
Vote For The Worst attorneys said in their response that it's a noncommercial website, although it did sell T-shirts that resulted in profit of $33.76 between June 2009 and May 2010.
They said the allegedly infringing material amounted to one-third of an R-J story with a link to the full R-J article and that it was posted without their knowledge April 11 by a forum participant in India.
They said the material was removed when it was noticed by Vote For the Worst managers, before they were sued by Righthaven and without any request by the R-J or Righthaven to remove the material.
"The website .. does contain advertising through Google AdSense. Yet Vote For The Worst received essentially no income from the forum at issue — at most, Google Ad revenue from that forum constituted 1 cent of income.
"The actual damages were probably, at best, 1 cent," the attorneys wrote.
Righthaven, however, sues for statutory damages that do not require it to show any economic harm from the infringements. The statutory damages, Righthaven says, are available to deter widespread online news piracy.
Another possible defense strategy is for Righthaven defendants to plead ignorance -- that is they didn't know that posting Review-Journal stories on their websites could amount to copyright infringement.
Three defendants have told the Las Vegas Sun they are considering that strategy, particularly they say since the Review-Journal tolerated or acquiesced to the online postings without objection -- for years in some cases.
Attorneys for Righthaven, in the meantime, are disputing allegations filed by defendant Michael J. Nelson in his case.
Sergio Salzano, a Las Vegas attorney for Nelson, a Las Vegas real estate agent, charged in court papers that Righthaven was operating as a money-making venture, that its copyright litigation campaign amounted to an abuse of legal process and that it smacks of "barratry," which is defined as the persistent incitement of lawsuits.
Righthaven attorneys Steven Gibson and J. Charles Coons fired back in court papers: "The reckless assertion of unclean hands as a defense to Mr. Nelson's blatant copyright infringement cannot be entertained by the court. Righthaven's pursuit of the instant copyright infringement claim is well-founded both in fact and in law, and is entirely devoid of illegality or transgression on behalf of Righthaven."
"Mr. Nelson bases his argument on a variety of unrelated facts, none of which have any bearing on the legal standard for unclean hands, or any bearing on this lawsuit in general. Similarly, Mr. Nelson fails to cite any legal authority to support these irrelevant contentions," they wrote.
They added that in the Nelson case, Nelson allegedly not only displayed an R-J story without authorization, but removed the credit line and erroneously attributed authorship to himself with the line: "Posted by Michael Nelson."
Righthaven called this "deceptive conduct" and not fair use of the material.
"Simply stated, this act – essentially one of plagiarism – most accurately exemplifies the presence of unclean hands in this lawsuit. Ultimately, Mr. Nelson's assertion of an unclean hands defense is nothing more than a diversionary tactic employed by a blatant copyright infringer," the Righthaven attorneys wrote.
Two Righthaven observers, in the meantime, have posted blogs critical of the Review-Journal and Righthaven for suing over online story postings rather than asking that the postings be replaced by links.
University of North Dakota law professor Eric E. Johnson writes at his Blog Law Blog that Righthaven's "shoot-first/shoot-everybody/shoot-often style of copyright enforcement is chilling bloggers out of their fair use rights."
"I think what the Las Vegas Review-Journal and its thugster stooge Righthaven are doing is completely obnoxious. It reeks. It also makes the Las Vegas Review-Journal look like a pack of feral alley dwellers instead of an earnest news organization that is deserving of the public trust.
"Filing federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior. That would apply to anyone. But for a newspaper to do it is abhorrent," Johnson wrote.
And Los Angeles attorney Mary Zachar, writing at the IP ADR blog (covering alternative dispute resolution of intellectual property matters), noted the R-J through Righthaven is suing its own customers even as "freedom of speech depends on a vast public domain."
"Most consumers see excerpting and linking as essential to dialog in today’s marketplace," Zachar wrote.
"To assert as (Righthaven CEO Steven Gibson) does that copyright is a media company’s core asset is to see 1st Amendment and copyright as separate rather than as twin pillars supporting the industry. When it sues its own consumer, and will even sue its content’s interviewee who has re-posted (a story involving himself), a dysfunction arises," she wrote.
Righthaven and the R-J, however, have argued the lawsuits are necessary to stop theft of the R-J's copyrighted material and that it would be impractical to contact all the alleged infringers to request they stop infringing.
R-J, please don't sue rantburg! Buy the site from Fred instead. It has a higher circulation than the R-J. Just let the mods do their job.
What's RJ? Oh yah, that new site I blacklisted last month, almost forgot about them.
University of North Dakota law professor Eric E. Johnson .....please note that he makes zero legal arguments...he just spouts outrage.
Also Los Angeles attorney Mary Zachar also makes zero legal arguments and tries to mislead. His statement "Most consumers see excerpting and linking as essential " has nothing to do with the lawsuits. In the lawsuits the defendants have cut and paste all or a significant portion of the copyright material.
"Defense attorneys usually argue that Righthaven has no right to sue since it didn't own the copyrights at the time of the alleged infringement"....the law allows one to file copyright after publication. It is not a valid defense for copyright infringement for many reasons.
"Defense attorneys also typically argue the use of the material is protected as fair use "....you can't copy and paste all or a significant portion of copyright material. The exceptions are rare and there is a build hurdle to overcome to prove an exception is fair use.
"in the case of out-of-state defendants, that the Nevada court lacks jurisdiction over them." This might be the only valid defense listed might I doubt if it will fly either.
"is still available for free by conducting a Google search on the title of the article. There is no harm, no damages to Righthaven..." There are two problems. One is the law allows for suing payment of monies regardless actual economic harm. There are damages amount set by law. Second the economic harm is the lost of income in both terms adverstisment traffic and purchasing of news articles.
"establish an implied license," ....this one is so funny. I imagine that the judge will throw that one out first and in record time.
The defense attorneys have their backs against the law. They are coming up with a lot of goofy stuff.
It is interesting to see if any of it sticks.
Them dirty low down scoundrels, I posted a link from the RJ on a sports board and was warned by the administrators. I'm done with them, is it safe over here? I thought I was doing them a favor and advertising their paper.
surprised they settling for so little considering how much they will lose due to the backlash and negative publicity they are getting from this.
at 11:11 AM today Rush Limbough quoted an RJ story about local Imams being upset about Reid's Mosque stand, will Rightklaven sue Rush Limbaugh, who has a cochlear implant in his head which is a product of government tax and spend out at NASA and the University of Melbourne that enables him to keep his job.
The settlements that have been reported ($2185. and $5000.) are slivers of the potential $75,000. If the lawyers don't have to prove any monetary loss to sue for statutory damages, and they are sure of their cases, why aren't they holding out for the full amount?
Sherm (SgtRock): Really, you think this is a smart idea for a newspaper with static circulation? Despite what the law says, and I say this again, don't you think sending "cease and desist" letters first would have solved most, if not all of this issue?
While I believe in the rule of law, and in the copyright laws, this just seems over the top. And beyond that, consider the targets of the suit, most of whom probably don't have the money to defend themselves, or even file answers. They could easily find themselves in bankruptcy with their lives ruined because you (Sherm) decided to take the maximum action rather than try to work it out.
Ordinarily I'd ask why "SgtRock" seems to have no sympathy for those defendants, but since he's either Sherm, or maybe a shill for Sherm, it's clear.
We are in a era that will witness the dieing of the newspaper. The RJ is a gray lady going down.
I go to there site to find the advertisers and go to there site and tell them I will not patronize them as long as they continue to advertise in the RJ.
Will you join me its actually fun to write a letter on there web site you now where it says contact us then wait until you get a response to see how they explain why they advertise there its kind of entertaining. If a few more were to try this then it might make a difference I don't know if it would but hey you can't never tell.
casinokid: That's a great idea, boycotting advertisers and the RJ website, writing letters to the advertisers. I'll try it...if we get any responses, we ought post them.
Martin9: I think the RJ, as I've said before, made a serious error in judgement (which is understandable if you look at Sherm's, SgtRock's, blog and editorials and the content of the newspaper). I doubt, though, it really cares what it's doing to the defendants, the community or how the rest of the world views the community.
There will be bankruptcy declarations. It's disgusting and very, very sad.
It's interesting how most, if not all commenting here, with the exception of Sgt.Rock (Sherm) are opposed to these lawsuits.
I believe in the copyright laws and believe they're important. It think that probably every target who violated them didn't even consider the issue because of the new world of the Internet. Of course, we all know now...but who can possibly not be sympathetic to those targets who no doubt made their posts out of ignorance of a complex law.
Do we all have to be lawyers these days, or consult them before do anything?
I truly feel sorry for those defendants who are going to have pony up hard earned dollars in this economy to Righthaven, the RJ or their own attorneys, or file bankruptcy.
It's disgraceful, Sgt. Rock (Sherm)
If anyone else is going to email advertisers of the RJ, let me point something out to you before beginning.
Don't click on RJ ads. Type in the advertisers address directly into your browser. Otherwise the ad click may result in income for RJ.
I'll write some letters, too.
Chunky says:
It's not a matter that it's "impractical" it's just not profitable!
That's what Chunky thinks!
westvegas,
The RJ does not sell click thru advertising, they sell impression advertising using their made up traffic numbers.
They make nothing for you clicking but the advertiser believes their ad is working if you do click on them.
There are lots of available domains: boycottlvrj.com and so on. Who's going to pick them up?
Sherm (Sgt.Rock): Dropped the Curtis suit. Why? Jurisdictional issues? Problem with your attorneys?
hmmmf.
What a sad, tawdry chapter in the anals..er..annals of Journalism in general, and for the R.J. in particular.
The bar has been set at an all-time low.
The "National Enquirer" is probably more reputable than the R.J.
gmag39: As a matter of record, the Enquirer was the only paper in the nation that got all of its stories/facts right in the original OJ case...weird, but true. Also, there was a time when it was the highest paying newspaper in the nation. All of that said, I don't read it, but I do think those facts are interesting and also easily checked. And, I think you're right: It's probably more reputable than the RJ, just thought you might be interested.
Hey, Murray,
I think we're "on the same page".
gmag: Looks like it...With all the discussion here, I don't think anyone's really given the Sun credit for good reporting and good stories we would otherwise see in our town. So, LV Sun -- Great Work!
The Sun has just done a poor job over the years that they have become an insert into the LVRJ.
Although at times, here and there, they have quality news articles, it is their balant bias reporting that has slowly killed the paper over time. I guess there is just not enough libs who want to fork out cash to read daily koolaid.
Old news Sherm...you know afternoon papers are all but gone. Show us your joint publishing agreement so we can really understand that deal. And what's your circulation? How much as it grown? Oh, it's still less than 200,000.
And, poor job? Pulitzer winner, filled with great local news stories versus a paper with a larger staff most of which cater to your interests and whims.
One paper is inserted into another paper.
Can you guess which one is more successful in terms of making money and which one ove time has more readership that is willing to pay for the paper?
"Can you guess which one is more successful in terms of making money and which one ove time has more readership that is willing to pay for the paper?"
That's a tough one Sherm: You're supposedly a newspaper guy, so why don't you publish the RJ's financials as a challenge to Greenspun to publish his. As to readership, your circulation that has gone nowhere in years answers that question.
SgtRock is a character name owned by DC Comics. Kind of ironic for someone claiming copyright infringement to steal someone else's persona, huh?
If only Sherm and Company could write like this, from today's New York Times, he might have copy worth protecting:
From today's (Sunday's) New York Times:
Maureen Dowd (http://www.nytimes.com/2010/08/22/opinio... "The country is having some weird mass nervous breakdown, with the right spreading fear and disinformation that is amplified by the poisonous echo chamber that is the modern media environment." Click here for the full column, Going Mad In Herds.
Frank Rich (http://www.nytimes.com/2010/08/22/opinio... "Poor General Petraeus. Over the last week he has been ubiquitous in the major newspapers and on television as he pursues a publicity tour to pitch the war he's inherited. But have you heard any buzz about what he had to say? Any debate? Any anything? No one was listening and no one cared. Everyone was too busy yelling about the mosque.
It's poignant, really. Even as America's most venerable soldier returned from the front to valiantly assume the role of Willy Loman, the product he was selling was being discredited and discontinued by his own self-proclaimed allies at home." Click here for the full column, How Fox Betrayed Petraeus.