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: The ruling first runs through a quick version of the four factor "test" for fair use, and suggests that the defendant might actually have a case for fair use -- noting that, in the court's analysis, the only factor that goes against the defendant is the fact that an entire article from the LVRJ was used. However, the other three factors appear to weigh in favor of finding fair use. This doesn't mean that it is, definitely, fair use, but that there's at least an argument there worth exploring in court.

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.

Filed Under: copyright, implied license
Companies: las vegas review journal, righthaven, stephens media