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Newspaper May Have Given Implicit License To Copy 175

Posted by timothy
from the this-way-to-the-lawsuit dept.
An anonymous reader writes "Following up on the story of Righthaven, the 'copyright troll' that is working with the Las Vegas Journal Review to sue lots of websites (including one of Nevada's Senate candidates) for reposting articles from the LVRJ, a judge in one of the cases appears to be quite sympathetic to the argument that the LVRJ offered an 'implied license' to copy by not just putting their content online for free, but including tools on every story that say 'share this' with links to various sharing services (including one tool to 'share' via Slashdot!)."
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Newspaper May Have Given Implicit License To Copy

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  • They need help (Score:3, Interesting)

    by h00manist (800926) on Wednesday September 22, 2010 @08:12AM (#33660608) Journal
    Their articles need posting to a few hundred websites more... that way they can become partners with the **AA gang in the mass-mail lawsuits business. It's all part of a plan for a DOS attack on the justice system.
  • A limited reading (Score:5, Interesting)

    by Sonny Yatsen (603655) * on Wednesday September 22, 2010 @08:24AM (#33660670) Journal

    I just want to note that the Righthaven v. Klerks decision linked to in the article should actually be read on fairly narrow grounds. The whole issue of Righthaven is whether to vacate a default judgment entered against Righthaven. In order to vacate the default judgment, the defendant had to show that they 1) weren't culpable in defaulting, 2) they had a meritorious defense to the original case, and 3) not vacating the default judgment will prejudice the defendant.

    The whole part about the implicit license to copy and fair use was applied only to the question of whether Righthaven had a meritorious defense. However, it does not mean that the defense is a winning defense, merely that it wouldn't be laughed out of court if they asserted it. I don't think this really offers that much precedent beyond the narrow scope of the motion.

    In any case, while I disagree with Righthaven (and I agree with the judge on the matter of fair use), something doesn't exactly sit right with me with the Judge's argument that the newspaper gave an implied consent to copy the newspaper. Part of the reasoning is that the newspaper permitted the user to "'right-click' and copy the article". This seems like a dog of an argument to me. Practically all websites allow users to right click (except for Dr. Ann de Wees Allen) and copy the content from their webpages - that doesn't seem like it means that everything is offered on the web with an implied license to copy. Rather, the fact that the newspaper had links to share a link to the content on facebook or twitter or whatever - and thus should only really be read to have given implied consent to link, not to copy.

  • Re:Reform is needed. (Score:4, Interesting)

    by mcgrew (92797) * on Wednesday September 22, 2010 @08:42AM (#33660774) Homepage Journal

    There are two kinds of copyright troll: the ones who abuse copyright itself, like filing takedown notices on websites that aren't infringing copyright but the troll wants closed for other reasons (like it said something bad about them), and the industry shills who come to slashdot equating copyright infringemet to theft and terrorism with their "think of the artists" and "it's MY property" twisted logic.

    Sometimes you have to fight the trolls.

  • Re:Um... (Score:4, Interesting)

    by Spad (470073) <slashdot AT spad DOT co DOT uk> on Wednesday September 22, 2010 @08:45AM (#33660798) Homepage

    It is, as they always say in the lawsuits against P2P operators, all about how you advertise your services.

    If you say "Here is my article, come read it" then you're not implying anything beyond that, but if you say "Here is my article, come read it and share it with all your friends" then the implication is that you're happy for people to take that article and spread it around.

    Now there may be an issue of attribution, but that's an entirely separate issue from claiming that people are violating your copyrights by doing what you invited them to do.

  • Re:A limited reading (Score:5, Interesting)

    by Sonny Yatsen (603655) * on Wednesday September 22, 2010 @08:52AM (#33660852) Journal

    It's an interesting issue to bring up. Because of technology advancing so quickly, these issues are still yet unresolved. You gotta remember, a lot of judges aren't tech-savvy and there's a gap between the technological knowledge of a court and the issues that pop up nowadays. (For instance, a few years ago, no websites would have links to share on social networking sites like facebook or twitter.) Case in point, judicial districts still use antiquated technology to function. The New York Judicial Courts, for instance, still mandate the use of WordPerfect as its preferred format.

    As far as the difference between sharing the article and sharing a link to the article, I think the most appropriate slashdot appropriate analogy would be the difference between a memory location and a pointer to a memory location.

  • by koterica (981373) on Wednesday September 22, 2010 @08:54AM (#33660874) Journal
    As others have explained above, this judgment isn't so much a precedent as it is a judge saying that the argument *might* work. However- it shows remarkable reasonableness on the part of the judge. After all, if I put a fruit bowl on a table with a note that said "Take one and have a nice day!", I could hardly turn around and sue you for banana-theft.
  • An insult to dogs (Score:4, Interesting)

    by Mr. Underbridge (666784) on Wednesday September 22, 2010 @09:02AM (#33660972)

    something doesn't exactly sit right with me with the Judge's argument that the newspaper gave an implied consent to copy the newspaper. Part of the reasoning is that the newspaper permitted the user to "'right-click' and copy the article". This seems like a dog of an argument to me.

    As a dog owner, I take umbrage with that statement. It's a terrible argument on a few grounds, including those you mention as well as:

    1) The right click thing is ludicrous, as you state and more. The site doesn't provide right-click functionality, the browser does. The site in question would have had to take extreme measures (like the de Wees Allen gambit) to prevent it, which never ends up working anyway. Besides, there are fair uses for newspaper articles (which would presumably be killed by effective copy protection) - just not necessarily this one.

    2) Didn't we have this whole link vs. content thing before with sites that link to pirated works, CSS keys, things like that? Aren't "we" on the side that sharing a link is completely different than providing content? So they should be able to provide a *link* without that being interpreted as providing the content, right?

    3) I really, really don't like the "it was freely (as in beer) available, so now there's an implicit license. Sounds a lot like the whole 'GPL software is in the public domain

  • Re:A limited reading (Score:3, Interesting)

    by Haedrian (1676506) on Wednesday September 22, 2010 @09:07AM (#33661016)

    Same way you could say people who offer torrent tracking, torrent searches, and torrent programs are to blame for the data which passes through them.

    I was being sarcastic, in light of the fact that this sort of thing has been tried once too many times.

  • Re:Um... (Score:3, Interesting)

    by Anonymous Coward on Wednesday September 22, 2010 @09:23AM (#33661192)

    How different is this from the free newspapers I see around the city that tries to propagate itself through free distribution? Just because it's passed around as much as possible, it doesn't necessarily mean you (the end-user) can take the articles and publish it in a book form compilation and sell it.

    As a photographer, I pass out postcards and other marketing materials. It doesn't mean the *potential* art buyers can use my image for their designs and advertising projects. I am the copyright holder.

    What about the software company that distributes shareware versions of their program - are they free to be modified and re-sold at profit? Or should I simply cripple my images with a watermark? Should the news site install a paywall to tone down this "implicitiveness?"

    I think the problem is not necessarily spreading the content, per se, but who's hosting. In this age of pay-per-click advertising, if the user is not visiting the original online publication with ads (News Site), but instead going to another domain with copied content (Copy Site), the Copy Site is generating revenue at the cost of News Site (editors, reporters, photographers ain't free).

    I would hinge this case as 'fair use' based on Copy Site's amount of articles copied; how much is copied (whole articles or quotes); and if any revenue is generated through ads or other financial incentive.

  • Re:A limited reading (Score:3, Interesting)

    by Urza9814 (883915) on Wednesday September 22, 2010 @09:24AM (#33661200)

    the fact that the newspaper had links to share a link to the content on facebook or twitter or whatever - and thus should only really be read to have given implied consent to link, not to copy.

    Except 90% of the time, when you share a link on Facebook, it copies a fairly large portion of the article into your news feed as well. I'm not sure if there's a way to turn that if, but if there is, I would say the validity of the argument rests of if that was enabled. And if that feature can't be or wasn't disabled, then I would say they most definitely gave a licence to copy at least on or two paragraphs from an article.

  • Re:A limited reading (Score:3, Interesting)

    by Sonny Yatsen (603655) * on Wednesday September 22, 2010 @09:29AM (#33661266) Journal

    Remember, one factor for the fair use doctrine is the amount that was copied. For example, if only a small portion is copied (as would be when links are shared via facebook), then that tends to support a finding of fair use. On the other hand, if the entire article is copied, then that factor tends to weigh against the defendant when making a case for fair use (as noted in the judge's decision here, actually).

  • by Myopic (18616) on Wednesday September 22, 2010 @09:35AM (#33661362)

    I was wondering about the "copy this article" claim, so I went to the LVJ website. I went to the first news article which was

    http://www.lvrj.com/news/bill-scott-anticipates-attempt-to-clear-police-in-costco-slaying--trash-his-dead-son-s-name-103510074.html [lvrj.com]

    There you can see, at the bottom of the article, a whole slew of "share on some other website" links, including Digg and Slashdot. The last icon is a heart, which I think is a way of adding the article to some kind of personal LVJ list of favorite articles.

    I don't see a link making it trivial to copy the text of the article, though of course it's no harder than selecting it and copying it. So, if that's right, I think that would be a hindrance to this defense, because the "implied license" would be to share a link to the article on aggregation sites which exist for the purpose of sharing links, not full articles. Moreover, the implied license would probably only apply to the listed sites.

    Also, there are two separate conspicuous copyright notices on the page. Of course, I can't say whether those notices were present in the past at the time of the alleged infringement.

    Disclaimers:

    • Fuck Rightshaven
    • I am not a lawyer
    • Your mileage may vary
    • Reform copyright now
  • Re:A limited reading (Score:3, Interesting)

    by teh kurisu (701097) on Wednesday September 22, 2010 @09:44AM (#33661484) Homepage

    There's a difference between placing a link (not covered by copyright) and a summary (covered by fair use in the US) on your site, and copying the entire article.

    The link and summary are actually a net benefit to the website being linked, as it may help drive traffic and increase advertising revenue.

    By copying the entire article, you're allowing others to read the article without being shown the advertising that would go with it.

    Even if the 'share' feature of the website did allow you to copy the entire text of the article, it's to a limited number of sites. It's reasonable to assume that the newspaper has given permission to copy to those sites, but that's no reason to assume that that permission is extended to your own web server.

    I think the judge is right to stop and question the wording used with the share function, but otherwise this seems like an open and shut case of copyright infringement and not at all an abuse of copyright law.

  • by Anonymous Coward on Wednesday September 22, 2010 @09:46AM (#33661506)

    ...their providing of "tools" on their website to help facilitate sharing content even goes so far as to constitute the granting explicit permission/license to copy.

  • Re:A limited reading (Score:3, Interesting)

    by Sonny Yatsen (603655) * on Wednesday September 22, 2010 @09:47AM (#33661522) Journal

    Righthaven's business model is that it finds people who copied a particular newspaper article, then track down the copyright owners of the article, purchase the rights to it and then turn around and sue the person they found. That seems like an abuse. In any case, copying a newspaper article (as noted by the judge here) for non-commercial and informational use may be a fair use under the multi-part fair use factor test.

  • Re:enough (Score:3, Interesting)

    by Myopic (18616) on Wednesday September 22, 2010 @09:48AM (#33661540)

    Hmmm. I don't know. That sounds like an ideological over-reaction to the current ideological over-reaction. I would prefer a balance, because I understand the arguments at both ends of this spectrum, and sympathize with them both.

  • Re:Um... (Score:3, Interesting)

    by networkBoy (774728) on Wednesday September 22, 2010 @09:49AM (#33661542) Homepage Journal

    And the counter to that is that the website author grants an implied license to copy the work for display on your machine so you can read it, but not a blanket license to copy for anything you want to do with it. In this particular case, however, the author(s) of the website placed "share this" links to /. and others, thus implying that they wanted to make the pages available to all for copying.
    -nB

  • Re:A limited reading (Score:3, Interesting)

    by teh kurisu (701097) on Wednesday September 22, 2010 @10:06AM (#33661734) Homepage

    In any case, copying a newspaper article (as noted by the judge here) for non-commercial and informational use may be a fair use under the multi-part fair use factor test.

    I'd question that, under the amount and substantiality test. And given the existence and ubiquity of hyperlinking, it's not necessary to copy an entire article for informational use.

    As for the business model, I agree it's not a particularly nice one, but the problem is with the large statutory damages that US copyright law allows. Reduce those, and allow the judge to set common-sense damages on a case-by-case basis, and this business model rapidly becomes uneconomic. Trying to allow exceptions where you don't like the business model just makes copyright law more broken.

  • Re:Common Sense? (Score:3, Interesting)

    by mea37 (1201159) on Wednesday September 22, 2010 @10:34AM (#33662086)

    In what world do you live?

    Are you not aware that the high-profile RIAA/MPAA cases are a tiny fraction of the copyright litigation that occurs? Have you failed to notice that even in those cases, while the industry groups are pushing for outrageous outcomes, the trend has been toward moderation (or, one might say, "common sense") for a long time now?

    It is not shocking news that the court is hearing this argument, and it will not be shocking news if this argument prevails.

  • Re:Reform is needed. (Score:3, Interesting)

    by Lloyd_Bryant (73136) on Wednesday September 22, 2010 @10:40AM (#33662202)

    Just wait for lawyers to start patenting their particular model of "lawyering" and then the fun REALLY starts. :p

    You mean like a trial lawyer patenting a method for making jury selections [wikipatents.com]? Sorry, it's already happened, and I haven't seen any *fun* resulting...

  • by FallinWithStyle (1474217) on Wednesday September 22, 2010 @10:41AM (#33662216)

    After all, if I put a fruit bowl on a table with a note that said "Take one and have a nice day!", I could hardly turn around and sue you for banana-theft.

    If you put a note on the table that said "tell all your friends to come over here and look at this fruit" and one of them stole a banana then you might have a stronger case, which I think better describes what's going on in TFA.

    You've both got the analogy wrong. Copyright violation != theft. A more appropriate version of your analogy:
    If you put a note on the table that said "tell all your friends to come over here and look at this fruit", and one of them took a picture of the fruit and showed it to others then you might have a stronger case.

  • Re:Um... (Score:3, Interesting)

    by DerekLyons (302214) <`fairwater' `at' `gmail.com'> on Wednesday September 22, 2010 @11:00AM (#33662516) Homepage

    No, it means that if you put a button on your site saying "Click here to copy part of this story to your website!", you can't then sue people for copying parts of the story. It would be like YouTube suing people for using the embed links they post.

    Not quite - there's different kinds of 'copying'. Putting a button on your site does give implicit permission to copy that portion of the story provided by the button - it does not give implicit permission to cut-and-paste the entire story. (Usually such buttons only provide a teaser and a link, and the LVJR's buttons adhere to this custom.) I'm hoping the judge recognizes the difference.
     
    Fair use plays into this as well. Unless it falls under one of the exemptions, then by copying the entire article to your website (whether or not you provide a link) you've violated the LVJR's copyrights.

  • Re:enough (Score:3, Interesting)

    by Migraineman (632203) on Wednesday September 22, 2010 @12:03PM (#33663828)
    You own it, until 14 years pass or you die. Within that period, you can license it as you see fit. However, if you license it to MegaCorp for the next 10 years, then slide under a bus the following day, the copyright goes *piff* and the work becomes public property immediately. No permanent licensing, no passing it along to your heirs.

    The "inalienable" part tethers the copyright to the blood-and-guts person who did the creating. Copyright is supposed to be an incentive for folks to create new things, no to be a welfare program for corporate interests.

Life would be so much easier if we could just look at the source code. -- Dave Olson

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