We've been covering the various stories of Righthaven lawsuits for months now, and one of the latest involves a site that we link to frequently here on Techdirt. The always excellent BroadbandReports.com has been sued by Righthaven after a forum user posted an LVRJ story. The article highlights the long list of defenses that the site is putting up against Righthaven, many of which we've seen from other Righthaven defendants, such as Nevada being the inappropriate venue and that Righthaven offers up an "implied license," with its encouragement to share.
That said, reading between the lines of the responses, it certainly looks like the site had not registered with the Copyright Office to get DMCA safe harbors. In fact, so far as I can tell, while Righthaven has sued multiples sites that involved forums where the content was posted by a third party, the company has been careful to only sue those without a registered DMCA agent. I'd be curious if there were any examples to the contrary, as I've yet to find one. So, first, a quick public service announcement: if you run any sort of site that allows public participation -- blogs, forums, whatever -- register with the copyright office for DMCA protection. Do it now. Seriously. It can protect you from this kind of headache.
That said, I think it's quite an interesting question if a site still deserves protection from liability for third party comments even if they have not registered. I think a very strong case could certainly be made that such protections remain, though it might involve more of a process to have the court recognize this. First, you have the common sense point: which is that it makes little sense to pin liability on a third party tool or service provider that has no idea that a potentially law-breaking action has been taken. Second, the case law in trademarks, where there is no safe harbor as there is in copyright, has found that such service providers are protected anyway. I would think the various wins that eBay has had over Tiffany would be incredibly relevant case law for showing that even absent a registered DMCA agent, a site like BroadbandReports still should not get third party liability for comments of users.
Another argument that I find compelling is the fact that Righthaven made absolutely no effort to mitigate "damages" by first asking the site to remove the content. While Righthaven legally can go straight to suing, courts tend not to look kindly on companies that fail to take basic actions that could mitigate damages even without a lawsuit.
The final interesting defense is a claim of "copyright misuse," which is a tremendous longshot, but it would be a huge win if the court accepted it, and would more or less represent the end of Righthaven. If you're unfamiliar with it, copyright misuse is a defense against a charge of copyright infringement, when it's believed that the copyright holder was abusive or improper in filing the lawsuit. I doubt the court would accept this, though I think the claim actually makes quite a lot of sense. It's been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees. It would be great if the court smacked them down on a copyright misuse claim, but my guess is that many judges will be afraid to go that far.
We've discussed in the past how Canadian Wayne Crookes appears to be fairly litigious in suing sites, including Google, Wikipedia, Yahoo and Myspace for hosting content he felt was defamatory. In one case, he sued P2Pnet blogger Jon Newton not for posting such content but for merely linking to such content. Unfortunately, without clear safe harbors or an anti-SLAPP law, Crookes has been able to keep the lawsuit alive. It easily lost at both the district and the appeals court levels, but rather than recognize that perhaps suing Newton isn't the best target, he's pushed forward.
Newton is pointing out that while his own lawyer is doing the work pro bono, and with lots of large companies filing briefs in his favor, it's still going to cost a fair bit of money for the trial, and so he's asking readers to help out and to raise $5,000 to help cover those costs (anything left over will go to charity). This is definitely an important case in Canada, and it's already upsetting that it's gotten this far.
If Canada had a real anti-SLAPP type law, this seems like a perfect case for it to be used -- where it would have helped Newton get the case tossed faster and easier. However, without such a law, then Newton has to go through with all of the court process, which is a huge waste of time, even with having a lawyer help out. A combination of better safe harbors and an ANTI-SLAPP law, it would seriously help others being put in such a position.
Righthaven, the company "grubstaked" by the Las Vegas Review Journal, which is basically going around suing any and every site that posts any of its content, continues to up the ante in abusing copyright law. Every week, it's filing more lawsuits. We've actually been hearing from some of the sites that have been sued, and many are lawyering up to fight Righthaven, because the claims are getting increasingly ridiculous. Righthaven appears to not take into account any of the context of the pages on the sites it's suing. For example, many of the sites it's suing involve users -- not the site owners -- posting content in forums. In those cases, the site owners are almost certainly protected by the DMCA safe harbors (assuming they've set themselves up with the Copyright Office for DMCA safe harbor protections). That doesn't seem to be stopping Righthaven, though, which is making some fascinating (and blatantly wrong) legal claims.
For example, one of its recent lawsuits is against the political forum Democratic Underground, where a user (not the site owner), quoted a mere 4 paragraphs of a 34 paragraph story -- and included a link to the full story. No matter, Righthaven sued. As it does in all of these lawsuits, it's demanding $75,000. The number is carefully chosen, because it's less than what going to court will likely cost. The idea is to just get people to pay up, even if the legal claims are bogus. Beyond the $75,000, it's laughably demanding that the domain name of the site be turned over as well.
Righthaven tries to avoid the obvious DMCA safe harbor issue with the following:
"The defendants' failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the website constituted and constitutes the defendants' willful blindness to copyright infringements occurring on the website ..."
Nice theory. Too bad that nowhere in copyright law does it require service providers to have such proactive policies, and in the various lawsuits where this has been challenged (I'm looking at you, Viacom/YouTube, and you, Veoh/Universal Music) courts have pretty much laughed out loud at the suggestion that sites have any legal requirement to proactively police user generated content.
Given the fact that Righthaven seems to be suing more sites every week (it's about to crack 100, if it hasn't already), it seems like the plan is to basically just sue everyone that a Google search turns up, no matter how dubious the legal merits might be -- and hope that enough sites settle before this operation is put out of its misery. Nearly everything about this setup is questionable. The fact that it doesn't issue DMCA takedowns or alert sites before suing, while legal, can't look good in court. It suggests, quite clearly, that the copyright holder did not make use of clear tools at its disposal to "minimize" any harm. Courts generally don't like that. On top of that, suing site owners for actions of forum users won't look good either. Nor is claiming infringement on just a small snippet of a much longer article that includes clear attribution and a link back. It's difficult to see how anyone at Righthaven can legitimately claim "harm" here.
The only "good" that may come of this is that Righthaven is really doing an excellent job demonstrating what a laughingstock copyright has become.
In the meantime, if you'd like to hear Righthaven's CEO challenged on some of his assertions, be sure to tune into an audio "IP roundtable" from the law firm Bryan Cave on September 8th. Steve Gibson will be on the panel, as will Eric Goldman -- who I fully expect to challenge Gibson on many of his claims. The panel will also include Barbara Wall from Gannett who hopefully will explain why Gannett has chosen not to follow the LVRJ in suing people for advertising their content.
It's almost not worth mentioning because everyone knew this was going to happen one way or the other from the time Viacom first sued YouTube in the first place, no matter what the outcome of the initial case. However, with Google/YouTube getting summary judgment in its favor back in June, it was only a matter of dotting all the i's and crossing all the t's on the paperwork for Viacom's appeal (well, technically, Viacom needed to wait for the original summary judgment to be official). That's all been done and the appeal is now officially in motion, with the paperwork filed to start the appeals process. Get ready for a few more years of back and forth arguments before any of this means anything.
Honestly, if I wanted to make up this sort of stuff, I couldn't. Apparently domain registrar GoDaddy has been sued for $100 million by a guy who claims to hold the copyright on some photos of Michael Jackson, which appeared on a website with the domain MichaelJacksonCasino.com. Now, I could see a right of publicity argument from the Michael Jackson estate, and maybe there's even a copyright lawsuit for the copyright holder... but they would be against whoever created the website, not GoDaddy. In this lawsuit, I would imagine GoDaddy's lawyers will quickly point out the pertinent DMCA safe harbors and that will be that.
I'm very happy that the US has very broad safe harbors for liability in the form of Section 230, though I still don't think such a law should be necessary. It should be common sense that you don't blame a third party for actions of someone else. And yet, even with Section 230 safe harbors, third parties get sued all the time in the US. And, it's even worse in other countries where there are no such protections, and some judges will put liability on a third party, creating horrible chilling effects. Over in Singapore, there's a lawsuit that could be worth following when it comes to the proper application of liability on blog comments. Reader Veri alerts us to the news that a school based in Singapore (though it runs schools around the globe) the Global Indian Foundation (GIF), sued a parent who keeps a blog about the school, not for anything that parent wrote, but what some others wrote in the comments, claiming that the comments are defamatory.
The guy who's being sued, Ajith K Narayanan, points out that he didn't write the words in question, that the terms of service on his blog make it clear that commenters are responsible for their own language and, finally, that there wasn't any defamation anyway because the comments are true. The latter two arguments are interesting, but it's the first one that's the important one. If Singapore properly applies liability to those actually responsible, the case should just get tossed out on that first issue, and the other two issues shouldn't matter at all. If the school really wants to go after the commenters for defamation, it should be required to show that there's a strong likelihood that the material was defamatory, and then request a subpoena for the commenters' information (at which point the blogger can decide whether or not to fight it). But simply suing the blogger and claiming he's liable for the possible defamation takes third party liability way too far, and hopefully the court in Singapore recognizes this.
It should be noted that there are some other oddities involved in this lawsuit as well, many of which are summarized at this Techgoss post. It appears that the school initially filed criminal charges, but those were quoshed by a judge earlier this year. Then there's the really bizarre back and forth from April, that began with a report in an Indian newspaper that police had arrested a former GIF employee, claiming that he had started the blog and that it was a "fake" blog to discredit GIF. That report claimed that Narayanan had revealed this ex-employee to be his co-blogger in an affidavit. Yet, in a post on the site, denies pretty much all of that. This seems like a bit of a sideshow, but it does make the whole case a bit more confusing...
Well this is a pleasant surprise. Like many others, I had assumed that the court reviewing the Viacom/YouTube lawsuit would not accept either side's position for summary judgment and the case would go to a full trial. However, as Eric Goldman alerts us, the court has quickly ruled in favor of Google/YouTube, saying that it is, in fact, protected by the DMCA's safe harbors. Here's the ruling:
Basically Viacom's argument got decimated. The court points out that Congress clearly meant for the DMCA safe harbors to cover situations like this, and excerpts large chunks of the legislative record to support that. From this the court concludes exactly what many of us have been saying all along:
The tenor of the foregoing provisions is that the phrases "actual knowledge that the material or an activity" is infringing, and "facts or circumstances" indicating infringing activity,
describe
knowledge
of
specific
and
identifiable
infringements of particular individual items.
Mere knowledge of
prevalence of such activity in general is not enough.
That is consistent with an area of the law devoted to protection of distinctive
individual
works,
not
of
libraries.
To
let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials,
impose
responsibility
on
service
providers
to discover which of their users' postings infringe a copyright would contravene the structure and operation of the DMCA.
The court points out that not only does this makes sense from the legislative history on the DMCA, but also from a common sense standpoint:
That makes sense, as the infringing works in suit may be a small fraction of millions of works posted by others on the service's
platform,
whose
provider
cannot
by
inspection determine whether the use has been licensed by the owner, or whether its posting is a "fair use" of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit:
it shall not be construed to condition "safe harbor" protection on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity. . . ."
Not only that, the court finds that since Google is good about taking down content it receives DMCA notices on, it appears the system has been working just fine, and Viacom's worries are misguided:
Indeed,
the
present
case
shows
that
the
DMCA
notification regime works efficiently:
when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.
Once again, making it clear that "general knowledge" of infringing behavior is entirely different from the specific knowledge required by the DMCA:
Although by a different technique, the DMCA applies the same principle, and its establishment of a safe harbor is clear and practical:
if a service provider knows (from notice from the owner, or a "red flag") of specific instances of infringement, the provider must promptly remove the infringing material.
If not, the burden is on the owner to identify the
infringement.
General
knowledge
that
infringement
is "ubiquitous" does not impose a duty on the service provider to monitor or search its service for infringements.
The court also claims that the rulings in the Grokster, Isohunt and Limewire cases are not relevant here, as the situations in all three were entirely different. Amusingly, the judge quotes the rather damning email from Viacom's general counsel Michael Fricklas, where he stated, quite clearly, that YouTube was "staggering" in its difference from Grokster.
Basically, the court sides with Google/YouTube on every point and eviscerates the arguments of Viacom. This is a huge victory for common sense and the proper application of liability. Viacom will certainly appeal, so we're nowhere near done yet, but it's great to see the court get this one so thoroughly correct.
Lots of attention has been paid to Davenport Lyons and ACS:Law as two UK law firms that have sent out thousands of "pre-settlement" threat letters, demanding payment to avoid a lawsuit over copyright infringement. There was a third firm in the UK that briefly popped up trying to do the same thing: Tilly Bailey & Irvine (TBI). A ton of complaints were filed against TBI and even members of the House of Lords in the UK called them the "new entrants to the hall of infamy." After that, TBI "reluctantly agreed" to stop these kinds of campaigns, due to "the amount of adverse publicity" that came with it. Apparently TBI is a big law firm that's been around for nearly two centuries, and it realized that smearing its name this way probably wasn't a good idea.
However, since then, it's tried pretty much everything possible to pretend that it never did anything. Its latest move is to threaten Wordpress.com for hosting a blog that was critical of TBI. The ACSBore blog has been following the law firms involved in these types of actions and uncovering all sorts of embarrassing stuff at times.
However, in one post, the blogger behind the site put up a "wanted" poster of a TBI lawyer who had been involved in the pre-settlement letter campaign along with a blog post quite critical of the firm. Rather than go after him directly, TBI is using a bit of third party liability trickery, claiming first that using the image of one of its lawyers in a "wanted poster" is copyright infringement, and secondly, that the nature of the wanted poster was defamatory. TBI claimed that Automattic, the company behind Wordpress.com would be liable for defamation.
Of course, Automattic is a US-based company, and it almost certainly would not be liable under either issue. On the defamation claim, it's clearly protected by Section 230. On the copyright claim... well... just a year ago we wrote about an almost identical situation, with some company execs suing a guy who created "Wanted" posters out of their corporate photos. The company claimed copyright infringement, but the court noted it was fair use. Unfortunately, Automattic accepted the complaint as a DMCA takedown and removed the content to avoid liability. Perhaps the ACSBore owner will file a counternotice and get the image put back up.
TBI is also trying to find out the identity of who is behind the ACSBore blog. Wordpress is standing behind its user on that front, though, saying: "We will not, under any circumstance, disclose any contact/personal/private details of our bloggers without a U.S. Court Order, and this has not been presented to us."
For a company that was worried about its reputation, you would think it would learn that trying to intimidate critics is probably going to backfire badly and give you an even worse reputation than whatever it was you did in the first place. If TBI is really worried about bad publicity, it should ignore the critics -- not try to bully them legally into shutting up.
It's no secret that the UK's defamation laws are extremely problematic. They've longed been used for "libel tourism" as well as to silence critics. There's been a lot of talk in the UK about fixing those issues, but little action. Now it appears that a new libel bill has been introduced that, among other things, will give ISPs a 14-day window to respond to claims of libel. This seems sort of half-way between the typical "notice-and-takedown" and "notice-and-notice" proposals we've seen elsewhere. A two week window could actually give an ISP the chance to get a response or a challenge from the creator of the content before taking it down. However, not surprisingly, some are claiming this window is way too long, and ISPs should be forced to take down any content that is called libelous.
The bill does have many good aspects, including a defense for "responsible publication on matters of public interest," but appears to leave out a lot of important things as well, including shifting the burden of proof from the accused to the accuser. It's hard to believe that anyone, in this day and age, could possibly still have a libel law that puts the burden on the accused to prove they didn't libel someone. It's too bad that the UK doesn't appear ready to fix that glaring problem just yet.
As the Viacom/YouTube trial moves on, it should come as no surprise that a bunch of entertainment industry folks filed briefs in support of Viacom. They're going to protect their own, even if it means breaking a fundamental key that makes the internet useful (something that will come back to haunt them). Most of the filings echo the twisted claims of Viacom, such as the ones we recently picked apart, based on the totally unsubstantiated claim that Google somehow has a better idea of what's infringing than the copyright holder. A finding that agrees with that would be a massive rewrite of fundamental liability principles.
However, there's one filing that people keep sending in over and over again. I was going to avoid commenting on it, but it really is so ridiculous and so factually challenged, that it needs some sort of a response. It comes from the Washington Legal Foundation, a group that claims it's a champion of free market principles, limited government and individual rights... but then has regularly supported government granted monopolies in the form of copyright that go against the free market and individual rights. Sometimes, you get the feeling that any DC-based "think tank" organization actually stands for exactly the opposite of what they put on their marketing material.
WLF's filing focuses on the DMCA safe harbor questions in the case:
Like any good attempt to mislead, it starts out accurately. The DMCA was, very much, intended to fight copyright infringement online. But then it begins to subtly rewrite history in a dangerous way. Let's start with this line:
The DMCA was crafted to accommodate the concerns of copyright holders as well as the interests of Internet service providers. Specifically, Congress sought both to protect the intellectual property rights and to limit the liability of innocent service providers. As the DMCA makes clear, Congress believed these twin goals could best be accomplished by encouraging cooperation.
Technically... true, but extremely misleading. It's true that it was designed to "accommodate" the concerns and interests of both parties, but that sentence suggests that both sides came together to work out a happy deal for both. That's not the case. The DMCA was written very much for the copyright holders (hell, it was basically written by the industry). It was because of that, the ISPs then freaked out, when they realized that legislation written entirely by the industry would almost certainly put a ridiculous liability burden on ISPs. So they started making noise and complaining. Because of that, the DMCA's safe harbors were put in. That was the only way to get the ISPs to go along with the deal. This wasn't a case of the copyright holders and ISPs working together to come up with a solution. It was the copyright holders pushing for as much as they could get, and then giving the ISPs a safe harbor so that the bill would pass.
... the DMCA was neither adopted nor intended to encourage service providers to exploit the existence of the safe harbors by designing businesses based on an ability to avoid liability.
Frankly, that statement is obnoxious. Perhaps people in Hollywood (and self-contradictory DC think tanks) think that folks in Silicon Valley are purposely looking for legal loopholes to build businesses based on avoiding liability, but that's flat out ridiculous. Companies are building services because they find them useful and compelling. They're not "exploiting" safe harbors. They're recognizing the core reason why safe harbors are there in the first place: because liability should be place on the party who actually infringes. That should be common sense, but because it's clearly not, it needs to be spelled out in the law.
Relying on highly-specific decisions, YouTube and its amici seek to place essentially the entire burden on the copyright holder. This approach cannot be reconciled with Congress's clearly stated intent to "preserve strong incentives for.... cooperat[ion]," ... nor with the structure of the statute Congress enacted. In essence, YouTube asks this court to convert a calibrated series of shared obligations into a single "takedown" notice requirement placed solely on copyright owners.
Wow. Wow. This is just downright misleading. No one has ever said that the entire burden is placed on the copyright holder. It's blatantly wrong to suggest that. The point that Google and others have made is simply that making a determination of whether or not something is infringing is not something that can be made without knowing certain facts that the copyright holder knows (i.e., whether or not the holder has authorized the works). Thus, the most effectively know whether or not a work is infringing -- the requirement in the DMCA for content to be taken down -- is through a takedown notice. Once again, like Viacom and its supporters, the WLF seems to think that Google has a magic ability to understand Viacom's intentions and authorizations, when even Viacom's own partners have admitted that Viacom changed its authorization rules every few days and it involved a book the length of Crime and Punishment, which was not shared with Google.
Not only is such a limiting interpretation belied by the DMCA, it is undermined by the fact (as illustrated here) that a takedown notice often provides little or no protection to copyright owners.
Again, I'm left shaking my head in disbelief. Did they really claim that? The ability to pull content down without any judicial review whatsoever (which seems to go against basic First Amendment principles) provides "little or no protection"? Apparently, the folks at WLF haven't been paying attention to how widely the DMCA is used.
Under its interpretation of the DMCA, YouTube would be free to set up a business that knowingly infringes (and encourages and induces infringement of) copyrighted works on a massive scale by copying, publicly performing, displaying and disseminating those works. Under the construction of the DMCA it urges on this Court, YouTube could actively encourage massive infringement and still claim DMCA protection simply by after-the-fact (limited response to takedown notices.
Here, WLF is just making stuff up. Each of those points is wrong. If it has direct knowledge of infringement, then it violates the DMCA. If it induces and encourages infringement, it violates the Grokster standard for inducement. WLF knows this. YouTube knows this. No one denies this. I don't know why WLF is claiming otherwise, other than that it can't make its argument in a factual manner. The problem is that WLF is pretending that having general knowledge that some stuff infringes means that it can induce. No one is arguing that.
Simply put, Congress never intended such a patently one-sided result.
Well, first of all, that patently one-sided result is a figment of the imagination of the author. YouTube is not even close to arguing that it should be free to induce infringement. In fact, under the Grokster decision, everyone knows that inducement is infringement. Why WLF would pretend otherwise is beyond me.
But even worse, it's somewhat guffaw-inducing for anyone to suggest that any interpretation of the DMCA is one-sided in favor of service providers. The entire law was written in the interests of copyright holders, and it's massively one-sided towards them. The one balancing factor is the safe harbors. What WLF is trying to do here is to focus solely on those safe harbors -- the part designed to "balance" the DMCA, and pretend that's all there is to the DMCA, and that this interpretation designed merely to make sure that liability is properly placed on those doing the infringing is somehow one-sided. This is highly disingenuous.
There are plenty of interesting legal arguments on both sides of this case, but this particular filing is an attempt to rewrite history and the law in a manner that makes little sense and would wipe out a key principle in applying liability to those who are actually responsible. Instead, it tries to pretend that service providers have the magic ability to just know what's infringing and what's not. The inevitable results of increasing service provider liability in such a manner would be an incredible chilling effect on all sorts of user-generated platforms and service providers -- a result Congress most certainly did not intend.
