Righthaven Copyright Lawsuit Backfires 88
Hugh Pickens writes "Steve Green reports in the Las Vegas Sun that US District Judge James Mahan has ruled that the Center for Intercultural Organizing, an Oregon nonprofit, did not infringe on copyrights when it posted an entire Las Vegas Review-Journal story on its website without authorization and that there was no harm to the market for the story. Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, 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 market (served by the CIO) is not the R-J's market,' says Mahan. 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. Green says that Righthaven's strategy of suing 250 web site and demanding $150,000 in damages plus forfeiture of the web site's domain name has clearly backfired and now Righthaven, the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all."
Less protection? (Score:5, Insightful)
Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.
Re:Less protection? (Score:5, Insightful)
Ah. Jurisprudence.......
I believe in a more SchrÃdinger's Cat model of the law -- before it is decided, the law is half dead and half alive... :)
But seriously, even if the law existed before the decision, fewer similar cases will be filed against "infringers", which will make their lives easier.
Not everybody has the will or the means to fight this in court, even if they are actually "right".
Re:Less protection? (Score:5, Funny)
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Accentuation fuckups are usually text encoding errors, not typos.
Re:Less protection? (Score:4, Funny)
Yes, yes, it's always a programmer's fault.
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Maybe not, but on slashdot? I'll blame the programmers. They haven't learned about i18n yet. Well, maybe I haven't tested it since the last redesign...
80
That should have a degrees symbol.
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Nope....
Re:Less protection? (Score:5, Interesting)
Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.
I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work. In reality, the law is not a preexisting and inherently complete construct that waits for humans to discover and apply it. "Case law" is so named for a reason: courts do, in fact, make new law when they issue rulings that clarify or modify the existing body of law. This case did so. Prior to this ruling, it was not clear what the result of such a case would be, and by deciding it this way, the judge has created law that answers the questions presented here. This is one of the essential functions of a common law legal system, though it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results.
IANAL, but IAA law student with 6 weeks until graduation.
It's called checks and balances (Score:4, Informative)
it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results
It's called checks and balances. The judicial branch's power to make case law is not unlike the overlap between legislative and executive branches in the U.S. government. The President has power to block legislation that has 51 to 66% assent, and agencies have power to enact regulations that fill in the details of a law that Congress wrote in broad strokes.
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What about ESPN3?
ESPN3 isn't offered to end users, only to ISPs, and as I understand it, a lot of ISPs bow out because it's offered only under "nobody gets it unless everyone pays" conditions. It doesn't help if neither ISP serving your area has it.
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I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work
I think you are going to far in ascribing to OP an adherence to Natural Law theory, which implies the existence of Law, as if bestowed by Divine Providence, entirely anterior to human law making. Rather the judge is charged to discover the law which is "already there in the statutes [and] in the precedents." I think
Re:Less protection? (Score:5, Insightful)
Yes, Fair-Use Rights do exist. It's an affirmative defense, where you have to prove that you do have the fair-use right [by paying somebody to find the statues and precedents that are relevant and presenting them to the court in the proper way, generally].
But they only exist, in a legal sense, once a judge has made a determination that, for a given set of circumstances, based on the written law and precedences for a specific location, and for the specific facts of one case, that it is a 'fair-use'. If any of these change, then a judge would have to make a new determination for the new case.
Before a judge rules, neither side can say with certainty that for a given circumstance, it is or is not a fair use, as it depends on the specific circumstances of a single case, which is unlikely to be exactly the same as an existing precedent [which the copyright holder will be all to happy to point out to you].
And LTFS, this precedent, like most other ones related to fair-use of copyright material, has a very specific set of circumstances related to it, which may not cover other uses, even if done in a similar way [for example, if you had a personal blog with GoogleAds on it, and you quoted a significant portion of the article, the precedent may not apply to you because the judge could say you are trying to earn money through the use of ads].
But, then again, IANAL.
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While true, it's also worth exploring how this ruling can have an effect without being a binding precedent: When making a ruling, judges often look for older cases which are related in some way.
They often even look to foreign jurisdictions (other states, or even countries). Yes, they're not binding, but they sometimes get cited anyway, as in "ABC court decided X, maybe that's good legal reasoning."
So, we haven't won the war, but a small battle nonetheless.
(N.B. sig.)
I love it (Score:5, Insightful)
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Righthaven did what was improbable: Getting into the Slashdot hall of shame such that any story about them is automatically front-page material, the equivalent of SCO, RIAA, MPEG-LA, MPAA, and friends.
HA! (Score:3, Insightful)
well.. (Score:5, Insightful)
Did the good guys win for once?
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i dont know if we 'won', but the bad guys lost miserably.... and in the process put themselves in a worse position than where they started.... i guess you can call this a 'win' for the good guys...
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In the sense that someone was attacked unjustly, defended themselves based on the law, and won, yes-- the good guys (e.g. defendants that weren't guilty) prevailed.
The law was what the law was; no new groundbreaking precedent-setting decision. Just a look at the litigation, and the law, with a judgment that followed the law and didn't invent anything new.
"the story in question was primarily factual" (Score:5, Funny)
The ruling is irrelevant to most of the news media, then.
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The ruling is irrelevant to most of the news media, then.
True. But then, why would you want to copy the non-factual stories on Faux News?
Didn't try to use the story to raise money? (Score:4, Interesting)
I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.
And even if facts can't be copyrighted, a specific arrangement of them can be. The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.
I don't think that ruling is correct and I expect it'll be overturned.
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But the defendant prevailed on Fair Use claims. The statute of Copyright is limited, and the judge was showing Righthaven the limits of the statute.
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Still it surprised me that this is fair use as it was a complete reprint and redistribution of an article; usually it's about excerpts or quotes for redistribution, or for private copies.
Re:Didn't try to use the story to raise money? (Score:4, Informative)
It's because the original claim from Righthaven, that the publishing of the whole article would diminish its value on the market was thrown out because Righthaven does in fact not publish the article, but solely files suits against other people publishing it. So republishing an article with currently no value at all on the market by a non profit was considered fair use.
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So the result could have been very different if the publisher of the news paper or whatever where the article was published first had filed suit? Interesting.
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Yes. The verdict was basicly the judge telling Righthaven: Your business model sucks.
No take-down notices from Righthaven either (Score:2)
One key point in the ruling not yet mentioned is that Righthaven did not employ the take-down procedures set in place by the Digital Millennium Copyright Act. They failed to notify the blogger or the blogger's ISP, presumably because they knew that doing so would result in the piece being removed from the blogger's site and eliminating Righthaven's chance to profit.
Like others, I'm a bit troubled by how sweeping a ruling this seems to be. On its face it seems to give nonprofit groups a "fair-use bonus" ju
Re:Didn't try to use the story to raise money? (Score:5, Informative)
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That can be one of the factors in fair use.
USA copyright protects only creative expression.
See Feist v. Rural [wikipedia.org].
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See Feist v. Rural.
Yes, I'm familiar with it. Note the following:
It is a long-standing principle of United States copyright law that "information" is not copyrightable, O'Connor notes, but "collections" of information can be.
...
In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data.
In other words, although the names and numbers are purely factual and cannot be copyrighted, and the arrangement of them is obvious (alphabetical), the formatting and presentation can still be copyrighted. I.e. margins, page header/footer, columns, and even the typeface used. Simply scanning the pages and printing an exact duplicate phone book would infringe on its copyright, whereas copying the information out of it did not.
I also wonder about the following:
Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.
If
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Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.
If fact may not be copyrighted, fiction certainly can - so would the phony entries not be considered "creative"? Why not?
While they may be considered creative works; in this case they were presented as facts: they were part of a factual work, which was distributed as being factual information only. So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason. Someone trying to (legally) copy the factual information from the work, when sued for infringement on those phony e
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So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason.
So anyone who presents fiction in a manner so as to make it appear factual loses copyright? And, if someone believes it to be factual, they have carte blanche to copy it freely? I doubt it.
Someone trying to (legally) copy the factual information from the work, when sued for infringement on those phony entries, might even argue illegal entrapment and misleading by the original author.
Presumably it would be the responsibility of the one doing the copying to ensure that what they were copying was, in fact, factual... seeing how they'd need to verify the veracity of the information to avoid violating a copyright. And misleading? The phone book is not intended to be a listing of every number registered wi
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So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason.
So anyone who presents fiction in a manner so as to make it appear factual loses copyright? And, if someone believes it to be factual, they have carte blanche to copy it freely? I doubt it.
In this specific case the phony numbers were introduced with the specific goal of looking like facts, just to detect copying. No carte blanche here; case by case; as is fair use.
Presumably it would be the responsibility of the one doing the copying to ensure that what they were copying was, in fact, factual...
In case of a phone book, I would say "that IS the reference for the fact". Short of calling each number to ask whether the name/number is correct, this is your fact check. The telephone book lists numbers and implicitly tells you "this are the numbers; this are the facts; to our best knowledge they are correct". Yet they add a few f
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In case of a phone book, I would say "that IS the reference for the fact".
Then the reference they were looking for doesn't exist, because the phone book has one utility: you look up a name, and you find a number for that name. The reverse isn't guaranteed, nor is it guaranteed that every name will be listed, or that every name listed is accurate. As long as it isn't the name that you need to look up, it really isn't guaranteed at all. It'd be convenient, of course, for Feist to go ahead and assume these things.
However I'd agree that it makes it almost impossible to tell the facts
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It also lists address. Often there are lots of listings for the same last name, many of which don't have full first names, maybe just a first initial. However, if you find the "Bloggs, J" listed at the address which you know he lives at, you can be confident that the number is accurate. The probability would be vanishingly slim that you'd find a fake listing when looking for an actual person.
Re:Didn't try to use the story to raise money? (Score:5, Informative)
I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.
Normally no, but it is relevant in determining whether or not the use was a fair use; if it was fair, it is not unlawful despite otherwise being infringing. Of course, there are a number of factors that go into determining fair use, and it is always very fact-dependant. Just because a particular type of use is fair under one set of circumstances doesn't mean it will be under others.
And even if facts can't be copyrighted, a specific arrangement of them can be. The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.
Can be doesn't mean is, though. The arrangement and selection of non-copyrightable facts must itself be creative in nature as well as original (though do remember that originality, i.e. not having been copied, is not the same thing as novelty, i.e. never having been done before). A typical white pages will not be copyrightable in it's arrangement and selection of facts because it selects all the facts for a given area (few people want a phone book with only some listed numbers) and it arranges them in an uncreative way: last name, first name or initial, address, telephone number. Often this isn't an original way either, since they're just copying how other phone books were arranged.
In any case, I doubt there were arguments made that the article was uncopyrightable. Rather, how factual vs. how original a work is is another part of a fair use analysis. Generally, uses are more likely to be fair, the more factual the work used is.
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Can be doesn't mean is, though.
This is totally irrelevant to the discussion, but I wonder what Watson would do with this sentence. :) (And would Watson recognize the reference to Watson?)
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Gibson and Darl McBride (Score:2)
Separated at birth?
They really should team-up. McBride's foray in to profit through litigation was pretty successful, apart from the destruction of SCO and his having to carry a handgun.
About time (Score:5, Interesting)
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The problem there is at the federal level. Locally in order to be awarded damages you have to prove them. At the federal level there's all sorts of silliness like statutory damages and AFAIK there is no requirement that one demonstrate that one was damaged for other types either.
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The problem with damages is the proof. How can you prove you did not receive something? Or that you received less than you otherwise would have?
Take a patent holder who has made an interesting invention, tries to find a partner to help him build/market this product, but instead someone else takes the patent, starts producing the stuff, and the inventor sees his market swamped by infringing products before they get a chance to sell some themselves. So they sue. But for how much damages? How much could he ha
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Court should mean everyone has something to lose (Score:3)
This is a normal outcome, particularly from a ruling rather than the more common settlement.
Court should not be the means of first-resort, but the means of last resort. Everyone who walks in the door should potentially have something significant to them to lose. Otherwise, why settle? Legal costs deter small players, unexpected adverse rulings have to deter large players.
the Las Vegas (Score:3)
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I'm sure it's more similar to "The Wall Street." As in "Journal."
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Is that anything like "The Google?"
TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)
A little research on Stephens Media and... (Score:2)
TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)
I hope you washed the money they paid you...a little research suggests that it was probably a lot slimy [techdirt.com].
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TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)
I hope you washed the money they paid you...a little research suggests that it was probably a lot slimy [techdirt.com].
Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."
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Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."
Which brings up the question of why you believe that a freelance writer (i.e. - me) selling a story to a weekly magazine whose editorial management is (as is the case with EVERY ethical news operation) completely divorced and firewalled from the business management side of the operation is in any way unethical, immoral, or "slimy".
Huh....actually, I chose to use the link to techdirt's piece 'cuz using Wikipedia is often considered to be "too easy" [wikipedia.org] while I figured including a link to the statement of the President and CEO of Stephens Media announcing that Stephens Media had "grubstaked and contracted with a company called Righthaven" [lvrj.com] and filed 22 lawsuits as merely their opening salvo was likely to bias the reader.
Especially if the reader knew the definition of "grubstake" [thefreedictionary.com].
.And I said the money they paid you was likely slimy; I did
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Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."
Which brings up the question of why you believe that a freelance writer (i.e. - me) selling a story to a weekly magazine whose editorial management is (as is the case with EVERY ethical news operation) completely divorced and firewalled from the business management side of the operation is in any way unethical, immoral, or "slimy".
Huh....actually, I chose to use the link to techdirt's piece 'cuz using Wikipedia is often considered to be "too easy" [wikipedia.org] while I figured including a link to the statement of the President and CEO of Stephens Media announcing that Stephens Media had "grubstaked and contracted with a company called Righthaven" [lvrj.com] and filed 22 lawsuits as merely their opening salvo was likely to bias the reader. Especially if the reader knew the definition of "grubstake" [thefreedictionary.com]. .And I said the money they paid you was likely slimy; I did not say you were slimy for accepting it - rather, you chose to interpret it that way. Or perhaps, rather unusually for a freelance writer in America, English is your second language?
Oh, fer pity's sake:
grubstake/grbstk/ Verb: Provide with a grubstake. Noun: An amount of material, provisions, or money supplied to an enterprise (originally a prospector for ore) in return for a share in the resulting profits.
"A share in the profits" /= ""ownership".
And: "I said the money they paid you was likely slimy; I did not say you were slimy for accepting it - rather, you chose to interpret it that way," is sheer semantic handwaving on your part. Claiming that money paid for work entirely unrelated
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Perchance do you still get royalties for that article? You seem quite eager to
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It is my observation that, quite often, those who set out to ruin the lives of many, many others on the off chance that they can turn a profit from an act that many would term to be malicious money-grubbing are just expanding a pattern of behavior that equally as typically extends years and even decades in their past. Hence my use of the word "probably"...and my ignoring of your article's origination on the time-line of events.
Blah, blah, attempted post hoc justification, blah.
Perchance do you still get royalties for that article? You seem quite eager to get people to read it...even providing a link when it could be argued that said link has nothing to do with this slashdot article and was unnecessary in your original comment given that the claim of having written it means nothing on the web...i.e. I could as easily have claimed to have written it and included a link so as to harvest the click-profits for myself.
No, I don't get royalties for that story. You obviously don't understand how freelance writing works ... as only one of myriad things you obviously don't understand.
Go away, you dickless troll.
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It is my observation that, quite often, those who set out to ruin the lives of many, many others on the off chance that they can turn a profit from an act that many would term to be malicious money-grubbing are just expanding a pattern of behavior that equally as typically extends years and even decades in their past. Hence my use of the word "probably"...and my ignoring of your article's origination on the time-line of events.
Blah, blah, attempted post hoc justification, blah.
Perchance do you still get royalties for that article? You seem quite eager to get people to read it...even providing a link when it could be argued that said link has nothing to do with this slashdot article and was unnecessary in your original comment given that the claim of having written it means nothing on the web...i.e. I could as easily have claimed to have written it and included a link so as to harvest the click-profits for myself.
No, I don't get royalties for that story. You obviously don't understand how freelance writing works ... as only one of myriad things you obviously don't understand.
Go away, you dickless troll.
Oh, I know how freelance works...once you went off the deep end in your first reply to me, I took it upon myself (I am easily amused) to see how far you would go to demonstrate the quality and balance the reading public and prospective buyers could anticipate from one of your submissions - to include the one you quite generously associated this thread with.
I believe that we have both succeeded in our intentions.
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From the Department of Redundancy Department (Score:2)
Perhaps another Pinkwater fan? :)
One of my favorite silly names is from a sign in front of a small municipal building in Indiana. Though not visible from Street View [google.com], the last time I was by there, the sign out front proudly proclaimed: City of Gas City City Hall.
Though more obscure this side of the water, another of my favorites is a sign along the waterways in Koutou-ku in Tokyo, labeling a tributary as the Shin-sen-gawa River. Translated fully, it's apparently the New River River River.
Cheers,
at least (Score:1)
Until its appealed
them sons of whores ... (Score:3)
when at&t, general motors, or bp is sued, can anyone put a 'forfeiture of the trademark' clause in their demands ?
how can these sons of whores are even able to come in front of a court with such a demand ? dont excuse the strong language - im really out of strong words to describe this situation. if you know some, please use them in a sentence with word 'Righthaven' so that i will learn some socially acceptable strong wordage for such a situation.
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what does "forfeiture of the domain name of the company" even BEGIN to mean ?
Google "UDRP".
SHHHHH (Score:1)
the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all."
Ive often thought copyright trolls are our only hope of defeating the current copyright situation. They will let their greed make them look bad. Their perception of "hey we can get all these people to fork over their assets cause the law is on our side". I imagine all these trolls begin somewhat close to the major copyright organizations.