Judge Indicates LVRJ May Have Offered An 'Implied License' To Copy In Righthaven Lawsuits
from the setback-for-righthaven dept
It's been interesting to watch people's reactions to the Righthaven lawsuits. Plenty of people find it to be an abuse of copyright law, clearly for purposes outside of what the law is intended to handle. However, some copyright system supporters seem to think it's wonderful, and they've been mocking the various defenses that defendants have been trying out. While not all of the defenses seem to have merit, at least one judge seems quite open to the idea that the Las Vegas Review Journal did, in fact, grant an implied license on its website. In a ruling setting aside a default judgment against a website owner who had not responded to one of the lawsuits, the judge clearly seems to suggest that the implied license idea isn't so crazy:Much more interesting, however, is the discussion on the "implied license." A few of the defendants sued by Righthaven have claimed that the LVRJ grants an "implied license," via putting its content up for free and urging that people share the content, including 19 separate "sharing" services connected to each article. Supporters of Righthaven have mocked this defense claim mercilessly, but the court seems to think it's worth considering:
Defendant argues that the original copyright holder offered the article to the world for free, encouraged people to save and share the article with others without restrictions, and permitted users to "right-click" and copy the article from its website. Plaintiff argues that it gave no such license to the Defendant, or anyone else. Plaintiff instead claims that allowing users to hyperlink to its page is demonstratively different than allowing users to copy the entire article. Plaintiff argues that allowing a user to copy an entire article and post it to the user's website is similar to allowing a user to copy a library book and distribute the copies; a practice that it notes is illegal under current copyright laws. Even though Plaintiff is correct in regard to the redistribution of complete hard copies derived from a copyrighted library book in physical form, Defendant has still made a plausible argument based on the recent cases addressing the copying of works taken from the internet. The Defendant has reasonably asserted that the Plaintiff's conduct may have constituted an implied license and that the Defendant may have properly inferred that the owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the internet.I'm still not entirely convinced the implied license holds up in a full trial, but this has to make Righthaven (and some other companies...) a bit worried. If this case does move forward, and the court does find an implied license, I would expect quite a fight from lots of copyright-reliant companies to get such a ruling overturned.
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Filed Under: copyright, implied license
Companies: las vegas review journal, righthaven, stephens media
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;)
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As it turns out, I was recently on the jury in a sexual assault case.
It was a pretty cut-and-dry affair, where the perpetrator was clearly guilty. But then we found out the victim's name was "Anonymous Coward," and we returned a verdict of Not Guilty, because AC's really need to get their freak on.
The judge disagreed, holding that AC's should not have sexual intercourse under any circumstances, voluntary or not. He sentenced the perpetrator to a year in solitary, during which time she would only be able to read posts by Darryl, Bob, and TAM.
The case was taken to the Supreme Court, who ruled that the sentence constituted cruel and unusual punishment. But it was too late; the perpetrator had already hanged herself with a noose made out of her own hair. A note, scrawled on the wall in her own blood, read: "Even the bowels of Hell have got to be better than this tripe."
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They could say all they want "you know they don't want you using it", but the user really could not know.
This is very similar to either having a browser which does not tell the page about right mouse clicks, or which does not run JavaScript at all (NoScript).
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Don't put a statement in your site that says "share me" or similar because that can be viewed as written consent to use the content.
What is so difficult about it?
If they want to only let other link to it then they should have put "share this link"
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Were it just dependent on the lack of "DRM," it wouldn't be a good thing. (Not because of the granting of an "implicit license," but because it would end up encouraging DRM, and that's good for nobody.)
But it's not; it's also the fact that the articles were originally offered for free, and that users were actively encouraged to share them.
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...like my mom, who writes a short story and thinks it should be 1) given to anyone who will read it, 2) thinks that copyright should never end on anything ever, yet 3) can't understand why on earth she can't make a copy of a DVD she bought so her grandkids can watch it at their house when they're not at her house...
If they wanted to, could not LVRJ have avoided much of this confusion with a 'Link to this Article!' instead of 'Share!' It's a bit of a trap - share it like we suggest but we'll sue if you do.
FYI: mom's on the internet but I don't think she even knows how to hyperlink. You have been warned.
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Please see the moron commenting directly below. God, your timing was awesome....
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I find the judge's fair use defense analysis a bit suspect. She relies too much on Sony and ignores the Court's later reasoning in Harper & Row and Campbell.
The de minimis defense seems destined to fail. I'm not surprised the judge choose not to address it.
The implied license defense is interesting, and it's certainly meritorious, but I don't see it going anywhere in the end. Encouraging people to share links is not the same thing as encouraging them to post entire articles on the web without permission. And the whole "right-click" argument is just silly.
Of course, all of this will probably soon be moot. The defendant indicated in their motion that they will settle: "If the case cannot be settled, Mr. Klerks intends to assert several meritorious defenses, including fair use, de minimis copying, and implied license."
It's a shame that they probably will settle. I'd like to see this decided on the merits.
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It depends. Are the ads placed there by the owners of the website, or by the webhost? The latter is especially common on "free" hosting sites - the actual webhost doesn't have to pay hosting fees, in exchange for the presence of ads on their site. (Anyone remember Geocities?) Such sites are more likely to be non-commercial in nature.
Even if the webhosts gained money from advertising, "commercial infringement" would mean that the actual infringers (here, the users of that site) would have a commercial interest in posting the infringing content. I'm pretty sure that's not the case - I doubt that any users of that site get any portion of the advertising income.
Perhaps the webhosts could be guilty of contributory infringement, but there's no indication that they encouraged (or even approved of) posting infringing content. Safe harbors should apply, and since Righthaven never sent a single DMCA notice, the webhosts should be exempt from any and all liability.
But this is all moot - because the "implied license" has nothing to do with fair use or safe harbors, and everything to do with the idea that the content is not infringing in the first place. You can't infringe if you have a license, "implied" though it may be.
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I disagree with the judge and others that the implied license argument is the most meritorious one. I think the fair use argument has more meat on it.
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If the share link is there, it's a license
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Copyright law just can't handle automatic copying
In the Web World, many people can read the same article at the same time. Why? Because we all have copies of it. The browser copied it for us automatically, and legally.
Now all I am doing is copying my legal copy. Where does it say anything about that in the license?
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