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Friday, March 18, 2011 | 4:56 p.m.
An Oregon nonprofit did not infringe on copyrights when it posted without authorization an entire Las Vegas Review-Journal story on its website, a judge ruled Friday.
U.S. District Judge James Mahan said during a hearing he planned to dismiss, on fair use grounds, a copyright infringement lawsuit filed against the Center for Intercultural Organizing (CIO), in Portland, Ore.
The lawsuit was filed last year by Righthaven LLC of Las Vegas, the Review-Journal's copyright enforcement partner that also enforces copyrights for the Denver Post.
Mahan, who last year raised the fair use issue in the CIO case without being prodded to do so by CIO attorneys, said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, the CIO didn't try to use the story to raise money and because the story in question was primarily factual as opposed to being creative.
The judge also found there was no harm to the market for the story.
"The market (served by the CIO) is not the R-J's market," Mahan said.
Mahan also found Righthaven's use of the copyright for a lawsuit gives the copyright less protection than if the Review-Journal were using it in the normal course of delivering the news.
"Here the copyright has been removed from its original context," Mahan said.
"Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit," Mahan said.
This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.
In looking at copyright case law, Mahan noted in some cases infringers had refused to stop infringing when notified by the copyright holder. That didn't happen in this case because Righthaven sued the CIO without warning and without the Review-Journal or Righthaven asking the CIO to take down the story.
"That's missing here," Mahan said.
The story at issue was a 33-paragraph Review-Journal story about immigrants' relationship with Las Vegas police. The post on the CIO website credited it to the Review-Journal.
"It's an informational work. It's more informative than entertainment," Mahan said.
This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Last year another Nevada federal judge dismissed on fair use grounds a Righthaven lawsuit over a partial story post.
Shawn Mangano, an attorney representing Righthaven, said he appreciated the judge's analysis but indicated Righthaven would appeal, just as it appealed the earlier fair use ruling. The 9th U.S. Circuit Court of Appeals has not yet ruled on the first ruling. Mangano told Mahan that Righthaven's position is that fair use is an issue for juries to decide.
Mahan said: "I realize this is going to be appealed. I tell litigators 'that's why God created San Francisco'" -- home of the federal appeals court.
"The Copyright Act is important. The First Amendment is important. You'd be remiss if you didn't run it up the flagpole," Mahan told Mangano.
Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and that if the facts were different -- for instance if the Las Vegas Sun or the Los Angeles Times published a Review-Journal story without authorization -- a Righthaven lawsuit would stand a better chance of defeating a fair use challenge.
Mahan hasn't officially dismissed the CIO case -- he directed defense attorneys to draft a dismissal order, which he'll sign if he approves of it.
The ruling does not set a binding precedent for any of the other federal judges hearing Righthaven cases, but it's likely to cause Righthaven to consider whether it wants to risk another dismissal by suing a nonprofit. For Righthaven, its biggest legal challenge at the moment appears to be a counterclaim filed by the Democratic Underground in which Democratic Underground attorneys have suggested they've found evidence undermining Righthaven's lawsuits over Review-Journal material based on allegedly "sham" copyright assignments. Righthaven has disputed that assertion.
***
Separately, Righthaven on Thursday filed at least its 250th lawsuit since March 2010.
The latest suit, filed in U.S. District Court for Colorado, is over the Denver Post TSA pat-down photo. This brings to at least 46 the number of lawsuits over that photo.
The latest suit was filed against Georgia companies Street Grind Entertainment Inc. and Trinity Visions Media LLC; and an individual identified as Mteteaji Carnes aka Taji Carnes; all allegedly associated with the website streetgrind.com.
A Righthaven court exhibit shows the Denver Post photo on the streetgrind.com site and that the post did not attribute the photo to the Denver Post.
The website included commentary by a "MS Apple" incorrectly suggesting the photo was taken at San Francisco International Airport and also suggesting the passenger in the photo had become sexually excited by the pat-down.
This type of commentary about the photo appears to have originated with a website called deadseriousnews.com, which as of midweek had not been sued by Righthaven.
As of Friday, the deadseriousnews.com site continued to display the Denver Post photo along with parody-type commentary suggesting a passenger was arrested by the TSA for becoming aroused during the pat-down.
As usual in its lawsuits, Righthaven demands $150,000 in damages against Street Grind Entertainment and the codefendants as well as forfeiture of the streetgrind.com website domain name. A message for comment was placed with the new defendants.
The lawsuit claims the defendants didn't have a policy in place to deter or deal with the posting of copyright-infringing content on the website.
"Defendants’ failure to institute any proactive policies intended to address the postings by others of copyright-infringing content on the website constituted and constitutes defendants’ willful blindness to copyright infringements occurring on the website," the lawsuit alleges.
Also, a Righthaven lawsuit over the Denver Post photo was closed after a confidential settlement was reached with defendant Raw Story Media Inc.
WOW! Three cheers for Judge Mahan!
Good news to start the weekend.
"It's an informational work. It's more informative than entertainment," Mahan said.
I guess that almost all newspaper articles can't be copyright. Many books, like how-to books, would not be copyright.
Educational books would not be copyright.
60 minutes would not be copyright.
This news article on the lawsuit would not be copyright.
"This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity"
Actually it will discourage people from spending money to create news stories.
I bet good money that the higher court will laugh this out of court.
Sorry for your loss, Reverend.
The judge brought up one point that might not stand up to appeal: the fact that Righthaven did not send a take down notice first.
As I understand it, a take down notice is only required if the site has registered for a safe harbor with the copyright office and is in compliance with display requirements.
That said, it raises a bigger question. Does Righthaven send take down notices to sites that *are* in compliance when it comes across them? One would think that Righthaven does come across sites that have used "protected" material that are in compliance with the DMCA safe harbor regulations from time to time.
I would argue that if Righthaven has never sent a take down notice to such sites but has instead ignored them and moved on to other fish that Righthaven can not possibly win *any* suit from now on. This view is strengthened by the judge's point about Righthaven moving the copyright "out of context" strictly for purposes of a suit.
The judge all but accused Righthaven of ethics violations when he talked about them obtaining the copyright solely to support a legal action.
SgtRock,
The fair use guidelines include a point covering works that are nothing more than factual reports. The judge is clearly referring to that guideline. So your list of things that would not be covered by copyright is not applicable. The addition of an unspecified amount of original commentary takes a story out of the realm of being a pure or mainly factual account.
There are some areas that might stand up, but others should, and that principle will definitely stand up. Any objection to that will be on the grounds that the work was more than just a factual report.
Now, for 2 points extra credit, explain why a sporting event can be copyrightable in light of the above guideline about factual accounts. (Hint: performance)
Oops, the first portion of the 2nd paragraph should read: "There are some areas that might not stand up, ..."
Judge Mahan just stuck a dagger in the heart of Righthaven. He ruled that an entire article is can be fair use and that Righthaven has LESS protection from its claim of copyright than the LVRJ since they are not using it for publishing but for suing. Righthaven's business model is basically dead. Now it is up to an appeals court to cremate the stench ridden corps that was Righthvaven,
Rock. You lose buddy.
Sgt Rock
Thats right when a news report is primarily factual it cannot be copyrighted. Newspapers do not own the news. They are going to have to include some creativity in their stories to be able to have them copyrighted. The same thing goes for images where the photography played no part in setting up the scene. This argument can be used with the TSA image since the photographer was only there to snap a picture of a factual scene and had no creative part in setting it up.
The concept of copyright has become completely bastardized in this country. It was never meant to be perpetual. When the Constitution was first adopted copyrights only lasted 14 years. It is only designed to give the creator of the work a head start to see what they can do with it for a limited time. It certainly was not designed to become a weapon against free speech.
I have told you Rock that Righthaven is not the friend of copyright holders and their irresponsibility would hurt ALL copyright holders in the end. I was right and YOU are wrong.
Second to the investigative reporting award the Sun announced today, this is my favorite story of the day.
Ken,
I would disagree with you to some extent. It's not that a factual report can not be copyrighted, but that it is subject to fair use.
For example, the Sun frequently carries reports of car accidents that are pure facts and nothing else. If the RJ were to republish the story they would probably be open to a charge of copyright violation (if not outright plagiarism) since they are a commercial operation engaged in news reporting in direct competition with the Sun and it would be hard for them to sustain a defense of fair use.
On the other hand, if I re-posted the story on one of my non-profit hobby sites I would be well within the bounds of fair use.
Lets hear it for smart judges everywhere, it's about time that someone put a stop to this..!
boftx, I agree with you on the plagiarism part, but factually information and even a description of fact is not subject to copyright. However if the writer includes creative pros or a narrative then it would be copyrightable but not the actual facts contained in the story.
But what is really at hand hear is the part where Righthaven has LESS protection since it does not publish any works and therefore cannot claim they have been damaged. If Righthaven acted as a legitimate law firm and simply represented the LVRJ then there would have been a stronger case for damages. This entire ruling is an impeachment on the Righthaven business model.
botfx....how does the story from the link below from a 60 minutes report or a CBS Evening News Report or even this Sun story?
They are all the same and according to this judge they are can't be copyright.
http://www.lvrj.com/news/questions-gener...
SgtRock, please provide a link to somewhere other than the RJ if possible. I generally refuse to give them any traffic whatsoever unless it cannot be avoided, and not solely because of Righthaven. I find that their site is usually very slow to display a page on my system. Beyond that, I have asked more than once via email for information on how I can obtain a copy of a photo of my daughter they used in a story in December and have received no response at all.
one or more of these will end up in the supreme court to address fair use in the age of corporate endorsed sharing, and what happens when something goes viral on the internet.
Ken, I agree completely with you on the impeachment of Righthaven's business model. As I mentioned earlier, I think the judge came as close as he could to telling them that they are on thin ice with respect to ethics rules and regulations.
boftx: Apropos of the photo, if you didn't try Charles Zobell, try him; other than that, call the reporter and/or the photog on the story.
> I bet good money that the higher court will laugh this out of court.
lol -- I suspect you're right.
I just wrote a blog article on this story.
http://oneutah.org/2011/03/18/federal-ju...
Feel free to leave a comment. Even you Rock.
I wouldn't be surprised if on appeal it is held that the question of fair use should be decided by a jury, but I also think it could stand as is. I seriously doubt it would be "laughed out" by the 9th Circuit.
Judge Mahan has highlighted several issues that he sees as defects in Righthaven's action. Only one or two might be struck down on appeal. I suspect that unless the 9th Circuit says the question of fair use should go to a jury it will be upheld overall.
Just waiting on Right Haven to come up with the RELEASE they needed to take a photo of a TSA agent ON THE JOB.
Remember, they are using this photo for commercial purposes ~ so that passes it on to a different body of law.
Federal government employees may not be photographed for commercial purposes without authorization by appropriate authority within the affected federal agency.
Just let these ol'boys give Janet Napolitano a call eh!
Here is a link to some information on Judge Mahan (taken from Ken's blog post): http://judgepedia.org/index.php/James_Ma...
Considering he was nominated by Ensign and appointed by Bush I am surprised he ruled as he did.
I was heartened to read of Judge Mahan's decision ( though I too, am curious how much of it will stand up to appeal.)
However, let us not lionize Judge Mahan. Some of you may recall that HE was a focal point of the L.A. Times devastating expose of Las Vegas' crooked justice system. I'll take this particular ruling, but no more.
http://articles.latimes.com/print/2006/j...
boftx
I have found that their is a disdain for Righthaven on the left and the right. Infact I am very conservative and so are people like Brian Hill. Righthaven has offended and alienated the entire political spectrum which is quite a feat. Infact they have made themselves pariahs even in the legal field itself. Someone once said that Righthaven is to copyrights as the Westboro Baptist Church of Topeka Kansas is to Free Speech.
Good guys 2
Jacka33es 0
That's TAPS you hear, Shermy!!!
Righthaven will appeal but this is yet another money pit Righthaven has fallen into. With the counter suits and now two appeals going on and with more victims fighting instead of settling Righthaven has lost every penny it has ever made in settlements and then some. These losses will make other newspapers think very long and hard whether they want to deal with Righthaven because the business model damages their cases. Righthaven will have to make due with the copyrights they already own because they are going to be hard pressed to find new ones.
Righthaven is s sinking ship and anyone associated with them better start manning the life-boats or they will go down with them.
"The judge also found there was no harm to the market for the story."
The judge said that nobody would purchase a LVRJ story in Oregon but he failed to recongize that it is market share of the Internet that was stolen.
The pirate website could have easily followed the general accepted policy of listing a few sentences, giving credit to the LVRJ and linking back to the LVRJ.
They did not advance their cause to educate their readers by listing the whole story.
The ONLY reason why they listed the whole story was to keep the reader on their site and not divert traffic to the rightful owner of the material.
SgtRock,
Go to one of my sites and click on a link that goes to another site then tell us what happened. You are clearly out of your depth when it comes to technical aspects of the web.
I'll make it easy for you. I have seven (7!) offsite links on this page alone: http://www.whigsofnevada.org/soapbox/jim...
There are several ways of putting up links to other sites that will keep your page available.
I don't know what is your point. In fact, I believe you are giving support to my point.
Center for Intercultural Organizing website could have listed a few sentences from the LVRJ story. They could have stated that story came from the LVRJ. They could have provided a link back to the LVRJ story.
There was no purpose for them listing the whole LVRJ story on their website.
They could accomplish the goal of educating their readers without stealing the whole article.
Righthaven's sole interest is to make money. It has just found a way to use the Courts to legally extort money from people. They don't even formally copywrite anything until they find someone using it, then they buy it from the LVRJ, copwrite it and then sue. Maybe everyone should copywrite everything they write by just adding the circled C to everything. We sure would have some country. Just add it to every email you send, every comment you make on Twitter, Facebook, etc. Add it to all your pictures, etc. What a mess we would have. Then everyone can sue everyone.
Chunky says:
The "market share of the Internet" for the RJ is about ZERO even locally much less in Oregon or any other location.
A quick scan of banner ads on the RJ website looks like a few home builders, low budget casinos, restaurants and car dealerships. Not much of a "market share" unless you compare it to the Nickle Trader. What a joke!
Most company's sole interest is to make money. But few succeed doing it in such an questionable manner. Righthaven authors no work product either creative or constructive; they're not the author of the work they sue for. They only take ownership of the copyright once they find an alleged violation.
Chunky supports the legitimate rights of all authors and their creative work. What Righthaven does with our legal system makes him want to puke.
The sooner Righthaven is fed the same dish they're feeding other people the better our world will be.
That's what Chunky thinks!
Chunky does not think that much and that is what Sgt Rock thinks.
Otherwise Chunky would know that LVRJ last year had nearly a million more unique visitors to its website over the Sun's website.
Chunky is void of knowledge on this subject matter.
Obviously, Chunky does not supports the legitimate rights of all authors and their creative work otherwise he would support their right to transfer and sell their copyright especially in an effort to suppress the thief of the copyright.
Chunky has no clue on how to solve this massive theif of copyright that is occuring on the Internet on a daily basis.
That is what Sgt Rock thinks.
Sgt Rock
The problem is that whenever Righthaven takes a copyright the market for that item falls to zero. Infact the TSA image is now so toxic it will never again be used for its original purpose. It only exists now as a tool for Righthaven litigation. It has lost its intrinsic value. It is now damaged beyond repair and it was the Denver Post and Righthaven that destroyed it not the people who posted it.
Just like the Judge said copyrights were meant to protect and promote creativity. Once Righthaven takes a copyright there is no longer any creativity to promote because Righthaven does not publish or create anything.
The irony is that the Denver Post sold whatever value the TSA image or any other works to Righthaven and then Righthaven destroyed any intrinsic value the works have. The TSA image has become so toxic that it will never again be used in its original context. All value it had has been destroyed. It now exists solely for the purpose of suing people.
The tragedy is that image was an important peice of American history and part of a national debate. Imagine if other iconic images fell into the hands of Righthaven? 911 photos, The Oklahoma City Bombing firefighter holding the dead child, The firefighters raising the flag over ground zero, the JFK Assassination, Martin Luther King at the Lincoln Memorial. There are images that become not just an illustration of an event but part of it. They become part of the national debate. They become part of history. Wouldn't it be sad if these images became nothing more than fodder for a copyright troll?
What would you think would happen if copyright on the Internet would cease to exist?
How would AP make money? I could just display their stories without paying for them.
How would the Sun make money? I could just start a web site called the Las Vegas Sunshine and just everyday clone their stories.
How do you think the LVRJ got the TSA image in the first place? Somebody sold it them. Take away the money and much of those photos would never make to the news stand or the Internet. What incentive would they have to pay top dollar for photos if pirates will just take it and there would be no need for people to vist the newspaper website.
Be careful what you wish for.
You might just get it.
It seems that what the judge is saying. News stories have no copyright value for they are factual and informational and not entertainment (LOL). The judge seems to be the joke.
I was so happy with this decision. It means freedom of speech for all people on the internet who share information with each other. If a newspaper does not want for people to share information or send people to their site, then it's time for them to remove all print, email or share buttons and make it perfectly clear that they will not tolerate anyone using any parts of their pages or photos with the note: "You will be sued if we find any of this information on your website". "This newspaper website does not believe in sharing with anyone. In fact, our policy is that you would be a thief if you use anything on any of our articles, that this is private information belonging only to the newspaper, and this newspaper does not want it shared". I thought earlier when I read the comments, someone brought out the fact that Righthaven has gotten a copyright on a federal photo - public airport, on a federal employee giving a public pat-down. On this particular photo it clearly shows the face of this federal public employee. If I was this person and found out someone got a copyright of my photo with my face and have proceeded to go to court many times over my photo, I would be concerned about that. Would this then be considered Righthaven's private property? Did the attorneys at Righthaven get permission to take this photo and get a copyright from the federal employee who is shown in this photo, thus owning his picture? I would get upset if someone got a copyright of my face on a photo, told everyone to share, then proceeded to sue.
SgtRock
No one is talking about wholesale taking. I think everyone agrees that when it is truly taking business and readers away from a newspapers that a line has been crossed. However Righthaven does not go after people that fit that category. If they went after people like DeadSeriousNews who take and do not link back then people would understand and even support the paper in trying to stamp that out. However, Righthaven chooses to go after people with no connection to the original source.
There is no evidence that any of the people Righthaven has sued kept anyone from accessing the LVRJ or Denver Post. Infact there is no evidence that bloggers, websites, message boards etc take away readers when they post a story or an image but there is ample evidence that people linking and posting images sends traffic to the source. If this was not true then whenever Drudge posts an image and a link they would not melt the servers of those he links too. Also online news sources would not keep inviting people to link back and share their stories. A photo or article going viral is a boon to the copyright owner not a curse.
The papers would do themselves better by focusing on copyright infringers that really do hurt them and not look like bullies picking on an autistic kid, or a cat lady, or countless other bloggers with nary a penny to their names.
Righthaven says that driving traffic is irrelevant that it is more important for the paper to keep their copyrights than get the traffic. So if this is true then why does Righthaven require the papers to give up their copyright? Not to mention that a paper is in business to get readers not just to amass copyrights. The only entity interested in amassing copyrights are copyright trolls.
Righthaven and their corporate sponsors are PR tone deaf. infact I would say the PR people at both the LVRJ and Denver Post are beside themselves wondering what their management is doing. At least where the Denver Post is concerned I know this is the case because I have talked to people at the Denver Post and hardly anyone besides upper management (Dean Singleton) approves what they are doing.
AnitaBoyles
That is correct and I am currently investigating to see if the photographer was given any special access to a restricted area in the airport when that photo was taken. If so then that photo may very well be in the public domain.
There is also a strong argument using a precedent called a genericized trademark that could be used to take the copyright completely away from Righthaven and the Denver Post and placed into the public domain.
When a product becomes synonymous with its class of products such as Jello, Mayonnaise, Asprine, Thermos etc which were all originally trademarked brand names but became Generized after the products brand name became the defacto name of the product.
The TSA image could be put into the public domain for the same reason. The TSA image became iconic and did not just illustrate the TSA pat-down story but became part of it. It became a rallying cry for the "Don't Touch My Junk Movement". The image itself became synonymous with the national debate. Therefore it can be argued that the image has defacto been placed into the public domain.
http://en.wikipedia.org/wiki/Genericized...
If the RJ spent more time reporting the news and not pushing a right-wing agenda they might not be so much of a rag paper.
First I was bummed out because the Rebels lost. But then I found out that Righthaven lost a case, and I cheered up immediately.
boftx
You are right a factual story can be copyrighted but it's fair use allowances are much broader than one containing creative elements. They would not automatically go into the public domain.
Steve Green should be nominated for a Pulitzer for his coverage of this remarkable threat to press freedom. Once it's all over, and Righthaven has been put of business and made to repay those it sued, I hope Green will write a book about this. It's a supremely important cautionary tale about how vulnerable writers are to predatory enemies of free speech, and he's the one to tell it.
There have been very few cases that have defined the standards for fair use. In this respect, Righthaven is doing the Internet community a favor by provoking cases that will set precedence. Unfortunately for them (and fortunately for the Internet) they have picked several cases that will most likely go against them and define a broader field of "fair use" than they expected.
Had Righthaven gone after obvious offenders they might have gotten rulings that narrowed the definition of fair use. But as it is they are going to set a broader standard overall.
Most reasonable people can recognize what is fair use and what is not. Righthaven chose to look at the letter of the law and forgot that in equity the spirit of the law is the controlling factor in many cases. The ruling above is a clear example of the spirit of the law playing a major role in the judge's decision.
There have been a ton of Fair Use cases.
This judge is just pretending they don't exist and also is making stuff out of thin air.
The higher court will most likely overrule in both cases.
And his ruling makes no sense.
In one breath he says news articles can't be copyright unless they provide entertainment value which is just plain silly.
In one breath he says the LVRJ article has no market value anywhere in the USA except in Las Vegas which is just plain silly.
Then in the next breath, he says if the infringer was another newspaper website then he would have ruled exactly the opposite.
What????? Either his first two statements are always true or they are not.
If the infringer is a newspaper then according to the crazed judge that would change the informational news article into copyright?
He is one goofy judge.
I see Righthaven cutting thrown this ruling like swiss cheese.
It might take a year or two or three or four before the higher court rules on the cases.
good. that newspaper and this bloodsucking attorney need to get put back in their place.
the new publisher could have and SHOULD have ended these lawsuits, but he's got the ethics of a used car salesman.
this guy would burn down an orphanage just so he could have a "special section" full of ads to celebrate it being re-built.
"The higher court will most likely overrule in both cases." Handicapping the courts for attorneys is tough, for laymen, near impossible. I'm still wondering who's funding all of this, certainly the "recoveries" aren't.
Excellent! Wronghaven ought to be flogged by every judge until they are put out of business! Then they and the R/J should be forced to pay the costs for everyone sued including the intentional emotional distress they caused the defendants!
""The lawsuit claims the defendants didn't have a policy in place to deter or deal with the posting of copyright-infringing content on the website.
"Defendants' failure to institute any proactive policies intended to address the postings by others of copyright-infringing content on the website constituted and constitutes defendants' willful blindness to copyright infringements occurring on the website," the lawsuit alleges."
-------------------------
Isn't this similar to the ADA "drive-by" lawsuits? It seems like Righthaven could look around for websites with very little protection and they themselves create a user name, and plant copyrighted content on the site, and then make a claim that the website is unsafe.
For some of these lawsuits it's not the "user" that is getting sued, it's going directly to the owner of the website. It's easier than you think to locate a messageboard, create a "troll" account, and get to work posting up the TSA image. Then you quickly screen capture that, print it out as evidence, and file a lawsuit
My personal opinion is that it's way above the attorneys for Righthaven and these 2 newspapers even. It really looks like it is an attempt to stop freedom of speech on the internet. None of it makes any sense at all, none of these lawsuits do.
This judge basically pistol whipped LVRJ's frivolous lawsuit business plan into submission.
It's doubtful the ruling will be overturned for the reasons given by the judge -- a nonprofit located 1000 miles from LV posted an informational piece and identified the source at the top.
Then, without giving any warning to the nonprofit, Wronghaven, as is their frivolous lawsuit business model, filed suit and demanded a large settlement -- but would of course accept a smaller sum (under ten figures) from the hardened-criminal defendant.
This 'law firm' is nothing but a litigation bully. Suing a nonprofit on these grounds is lower than a snake.
boftx
Your post is absolutely correct. Fair use has really never had a fair hearing precisely because of the draconian penalties associated with them. Until now few cases on fair use have gone to court because it is always cheaper to settle than to fight. This is what Righthaven was counting on but because their measure are so extreme and so out of bounds with common sense and decency that people had to fight back and now there will be precedences for fair use and as you suggested they are going to be broadened not narrowed and it is all due to Righthaven.
sdstern
Yes they are not funding their operation with settlement money. Infact their backers may very well fund them all the way to the supreme court. What these losses do however is make it hard for Righthaven to get new clients and new copyrights. There has not been a lawsuit over anything from the LVRJ for a couple of months. Infact Righthaven seems to now rely completely on the TSA image for new lawsuits. That is only going to take them so far and if the TSA image is upheld as fair use then the whole house of cards comes down.
"Another One Bites the Dust"
Queen - 1980
Good waste some money on appeal...
I wonder if there will be more demotions over there when the last chapter of this is written.
Do they still have copy boys?
The judge totally ignored that the pirate website copied the whole article.
He quoted Sony Corp. of America v. Universal City Studios, Inc and in that case they stated that people at home could make a recording of the whole work. However in the justices in that case limited that ability to make a copy of the whole work to " the private character of the activity conducted entirely within the home".
A website is not a private home affair. The judge is saying that one can make a copy of a movie and post it on the Internet for the whole world to see.
It is a silly application of Sony Corp. of America v. Universal City Studios, Inc.
The judge also quoted Kelly v. Arriba Soft Corp as an other example of where the courts ruled that coping the whole work was not infringement.
That is false.
In Kelly v. Arriba Soft Corp the court ruled that a thumbnail representation of the images were not copyright infringement but when the website then displayed the full image that was copy infringement.
Perfect 10 v. Amazon.com is similar to the ruling in Kelly v. Arriba Soft Corp .
The court also ruled that a thumbnail representation of the images were not copyright infringement but when the website then displayed the full image that was copy infringement.
Field v. Google Inc.,
Google caches entire websites and readers can view those caches as if they were reading the pages from the original website.
That is not what the pirate website was doing in this case. They were not present the whole LVRJ website but only the story within their own website.
That case has absoluetly no bearing on this case.
Again the judge is getting snockered.
Nunez v. Caribbean Int'l News Corp
In this case, the courts excused the infringement for 2 reasons.
Reason 1: The infringer had lawfully purchased the photograph and was unaware that another newspaper had also purchased it and had copyright.
Reason 2: The photograph was released to the public domain by the photographer before the newspaper had copyright to it.
The pirate website did not lawfully purchased the story nor did the LVRJ released the story to the public domain before they published it.
Bond v. Blum,
In this case, the court rule that one could introduce an entire instance of one copy of book as evidence in a court hearing and that would be fair use.
Introducing one copy of book into evidence is not the same thing as publishing an entire book on the Internet for the some 300 million plus people on the planet to read.
It's tough defending the indefensible.
Especially if your snockered.
Thanks for the legal work, sgtrock. I didn't know you were a judge. I totally agree with Judge Mahan. I respect fully the copyright laws but not one that gets the copyright without any personal talent just to sue innocent people. What a wise judge that Judge Mahan is. I have been watching these cases for a year now.
Rock
What you cited won't change the outcome of the case. It is possible some of the elements in the ruling may be turned on appeal but the overlaying principles he stated are very iron clad.
The truth is Righthaven handicapped themselves with their bazaar business model. Infact if the LVRJ had of hired an actual law firm to represent them and stamped their own name on the suit and did it all legitimately we may not even be having this conversation but they chose to carry on a lawsuit in an underhanded way.
Righthaven is right when they say that a take-down notice is not required but as the judge rightly indicated without having a takedown notice and without the defendant being on record as ignoring a takedown request then it is very difficult to show willful infringement. If Righthaven would send take-down notices and then only sue those that refused the request then their cases would be much more solid. They chose not too and it burned them in the end.
It is like when a business fires someone they are in their rights to fire you for any lawful reason but most smart companies will wait till they have a sufficient paper trail before doing so as to avoid potential lawsuits and other hassles. A take down notice provides that paper-trail. Remember just because you can do something does not mean it is the bast way to go about it.
"but the overlaying principles he stated are very iron clad."
Thanks for that.....I need a good chunkle today.
It is very similar to your "Righthaven is going to bring an end to the Internet" statement.
Rock
Twisting my words and using them out of context again huh? Not very honest for Mr. Ethics is it?
I said it has the potential and already has had a chilling effect on free speech and that sharing and cooperation is absolutely essential for an open Internet.
Again until you tell us who you are and who you represent then you are unqualified to talk about ethics.
> The higher court will most likely overrule in both cases.
already hedging on your earlier statement I see. lol
it's funny, when you don't agree with a court's decision the judge is a bum. Why I'll wager a large sum of money you'd be praising the guy to the high heavens if he let Reichaven get away with this travesty of justice.
And here's a hint --- you don't want a jury trial in ANY of these cases ---- they'd rip you apart.
Sherm, I mean Sarge --- you lost your gig over Angle (which I see you're ignoring her reemergence over on your bog) ---- which makes me wonder: will this Reichaven thing finish you off for good? One can hope, eh?
And don't look now --- the Sun's outdrawn the RJ web numbers two months in a row. Hard to keep a "million" head advantage that way. I also noticed that Drudge linked to the AP story on Angle this week over the RJ's. Wonder why that is? lol
I know who doesn't understand how the web works --- and it's you. So keep isolating yourself and acting the thug and see how long you last.
This is the case that I expect to ultimately be decided against Righthaven: http://www.lasvegassun.com/news/2010/oct...
Judge Hicks has pointed out solid support for fair use. It might be sent back based on procedural grounds, but the I see strong arguments in favor of fair use if it goes to trial.
The waters are muddied on this one since there apparently was some kind of settlement prior to the ruling. Also, Steven Green says that this case has in fact been appealed in his other column today, though the story I linked to from October says it might not be.
I for one am very happy about this judges' decision. From my understanding of copyrights, if someone is not making money (not for profit), then they can't be taking away resources. Think of how many newspapers are all over the USA. When non profits put articles or photos, linking back to the original source, this helps newspapers to get more people to their site. All newspapers should have some copyright stamped on their photos, so we all know where it came from. This is also another tool for the newspaper. Also we should all be allowed to have free speech. Thank you, Steve Green for keeping all of us informed and I thank Judge Mahan for your wise ruling on this issue. We're all learning together what we can or can't do. It's very important, I think to link back to the original source because they will have even more information for us to read. All in all from the stress of these lawsuits, this is a good weekend for many of Righthaven's victims and victim's family and friends because of this decision!!
kbingh (Ken Bingham) said:
"There is also a strong argument using a precedent called a genericized trademark that could be used to take the copyright completely away from Righthaven and the Denver Post and placed into the public domain."
Err, no there isn't. Trademark protection is gained and lost for completely different reasons than copyright (ostensibly their ability to designate origin, which is lost if the mark becomes generic).
Best line of the day. Maybe the week:
Mahan said: "I realize this is going to be appealed. I tell litigators 'that's why God created San Francisco'" -- home of the federal appeals court.