Could The Legality Of Google's Cache Kill Righthaven's Copyright Claims?

from the legal-theories... dept

As Righthaven continues to file lawsuits, it seems that various lawyers who are concerned about copyright, free speech and chilling effects online have been rushing to help defend some of those sued. I can't recall a situation (even with US Copyright Group) where lawyers have been so eager to take on a company filing copyright infringement claims. Of course, the really interesting part is how some of the lawyers are testing out a variety of defenses to the lawsuits, some which seem to have a much better chance of passing judicial muster than others.

For example, some are claiming that Righthaven has no standing to sue, since it waits until after it's found the infringement to "buy" the copyright to the article in question from Stephens Media/Las Vegas Review-Journal. Others have argued that the lack of any actual damages should get the lawsuits dismissed. Still others have challenged the jurisdiction.

One interesting argument, based on an earlier ruling on the legality of Google's cache, makes the reposting of these articles "fair use." Unfortunately, the fact pattern in that case does appear to be a bit different. It not only involved a guy suing over the Google cache, but that guy also first requested that Google scan his pages, then made the request to visit the cache himself. Still, in that case, Google argued that without a robots.txt blocking them from caching the article, the guy had given implicit permission:
"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.
And, in that case, the judge agreed. So, with Righthaven, these lawyers are claiming the same basic thing. They're saying that the LVRJ gave an implicit license for a similar cache-with-link by putting the content up for free and by failing to limit the ability to copy & paste the text via technical means. On top of that, they point out that the LVRJ explicitly encourages people to "share" the articles on its site (something the LVRJ still does -- including quick links to share it with 19 different services).

This does raise some tricky issues. If Google's cache is, in fact, legal and not infringement, then how is just reposting a story with a link back infringing? But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff. Because of that general conflict, I'm beginning to wonder if some of the Righthaven lawsuits are about to become a lot more important than we initially expected -- and whether or not Google might have a very strong interest in supporting some of the cases against Righthaven.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Aug 19th, 2010 @ 11:51am

    Technical means?

    > and by failing to limit the ability to copy & paste the text via technical means.

    Wait wait... How would they do that? Don't the browsers already have the content, in plain text, since they need it to show to the reader?

    If "just block right-click" is the answer, that is a dumb answer; the copy (and select all) option is right on the Edit menu, which is outside the page frame and thus is not affected by anything the page does.

     

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  2.  
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    Hephaestus (profile), Aug 19th, 2010 @ 12:00pm

    "But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff."

    The VCR was declared to be legal years back for video taping TV shows. TV shows that were broadcast over the public airwaves and cable. It seems to me that it isn't a stretch to compare that situation to this one. Where the information is put out for the public to consume or view and people can copy it and use it. With every big content company is trying to turn the internet into the new "TV", I think its only fair that we can VCR the content online ... Big Ole Grin

     

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  3.  
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    :Lobo Santo (profile), Aug 19th, 2010 @ 12:04pm

    Re: Technical means?

    Or any 'ol savvy linux user can pull the entire plain-text with wget.

     

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  4.  
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    Anonymous Coward, Aug 19th, 2010 @ 12:24pm

    Re: Re: Technical means?

    > Or any 'ol savvy linux user can pull the entire plain-text with wget.

    Or simply use "View Source". I did not go there because you could obfuscate heavily at that level (malware authors do that all the time; you have a iframe which loads heavily obfuscated JavaScript which writes another iframe which loads...); however, copy-and-paste via the browser defeats all that, since the browser has already decoded whatever obfuscation there was.

    Of course, since ONLY malware authors do such heavy obfuscation (which is very different from the "minification" used to reduce the size of scripts), most antivirus would probably block your page as malware if you go that route (I think; I am a Linux user, so I am a bit out of touch with what cpu-hogging antiviruses do these days).

     

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  5.  
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    Hulser (profile), Aug 19th, 2010 @ 12:31pm

    Re: Technical means?

    Wait wait... How would they do that? Don't the browsers already have the content, in plain text, since they need it to show to the reader?

    I think the key word is "limit". They didn't say "absolutely prevent", but just "limit". In other words, if you don't make any attempt to prevent copying/caching, then you are implying that you think it's OK for people to copy or cache. But if you do something to prevent copying/caching, you may not prevent all cases, but at least you've conveyed your intent that you don't want this to happen.

     

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  6.  
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    :Lobo Santo (profile), Aug 19th, 2010 @ 12:34pm

    Re: Re: Re: Technical means?

    You've seen the linux virus going around right?
    http://www.mail-archive.com/newbies@uug.byu.edu/msg00188.html

     

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  7.  
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    Anonymous Coward, Aug 19th, 2010 @ 12:35pm

    Re: Re: Re: Technical means?

    I wasn't thinking straight. There is an even simpler way: even if you somehow blocked all copy-and-paste in the user interface and heavily obfuscated the user can retype the text. Unlike with graphics or sound, one can quickly retype a text in such a way that it is a perfect copy (it has a much smaller information content, small enough to write by hand).

     

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  8.  
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    Hulser (profile), Aug 19th, 2010 @ 12:39pm

    Re:

    You make a very good point. (Some might even say "insightful".) However, with the VCR, you could reasonably make the case that you were copying the content for personal use. But where would you draw the line with a Google cache of similar content which is available to anyone? Would it be OK to "cache" all of the content on Hulu? From a moral and legal standpoint, I don't think so.

     

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  9.  
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    Big Al, Aug 19th, 2010 @ 3:42pm

    Re: Technical means?

    "If "just block right-click" is the answer, that is a dumb answer".
    However, the point is that if they do that then they have implemented a somewhat half-hearted but nonetheless valid attempt at copy protection and made plain their intention that the content is NOT to be copied.
    Legally they can then say 'We implemented a form of copy protection to protect our work which was then broken by the defendants'.

     

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  10.  
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    Anonymous Coward, Aug 19th, 2010 @ 5:18pm

    "But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff."

    Do what the federal govt sometimes does, make an algorithm that constantly changes your links at random so that no links to your site work unless they got to them through your site. Of course if you did that no one would like to you and you'll lose viewers.

     

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  11.  
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    Anonymous Coward, Aug 19th, 2010 @ 5:19pm

    Re:

    no one would link to you *

     

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  12.  
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    Anonymous Coward, Aug 19th, 2010 @ 5:24pm

    Re: Re: Re: Re: Technical means?

    People can, and will always find ways to copy the content without manually typing it. DRM is usually broken within .... what .... a few hours, a few days max. Sometimes an hour depending.

     

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  13.  
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    Anonymous Coward, Aug 19th, 2010 @ 5:28pm

    Re: Re: Technical means?

    > Legally they can then say 'We implemented a form of copy protection to protect our work which was then broken by the defendants'.

    That is beyond ridiculous. If I never ever use right-click (say I am one of those stereotypical "dumb computer user" which never learned to use more than one mouse button) and instead always use the Edit menu, or if I always use the keyboard (Control-C/Control-V), I will never even know there is some sort of copy protection. I did not break your protection; it never protected anything in the first place.

    Or rather, it protected the wrong thing. It blocks opening the right-click menu. It does not block copying, nor does it even try to, other that by accident one of the right-click menu options is an alternative way of copying (the main way is in fact the Edit menu, which is also where the keyboard shortcuts are). Blocking the right-click menu only makes some sort of sense for trying to prevent "Save image as", which is usually not on any top-level menu or keyboard shortcut (until you notice it is on the "Page info" dialog).

    Blocking mouse selection is a little bit less misguided (but only a little bit, because of "Select All" and other forms of selection).

    If that sort of lame argument is accepted, I will lose all my remaining faith on the legal system (unless they manage prove the user had a browser configured to not ignore attempts to block the right click, tried to open the right-click menu with the intent of copying the text, noticed it was not working, thought the page was trying to block him instead of "the browser seems to be having a glitch", and tried to use an alternative way of copying the text with the intent of bypassing the misguided "protection").

     

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  14.  
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    Hephaestus (profile), Aug 19th, 2010 @ 6:40pm

    Re: Technical means?

    Just use wget for linux, or for MS win write a couple lines of code in Visual Studio.

     

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  15.  
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    Hephaestus (profile), Aug 19th, 2010 @ 6:57pm

    Re: Re:

    I ignored the "for personal use" part because of googles cache. If text can be cached so can anything else. It is after all just data, copyrighted or not.

    Now for some fun ...

    Does any one see the historical similarities between the reason for the statute of anne and what is going on in copyright today?

     

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  16.  
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    TtfnJohn (profile), Aug 19th, 2010 @ 7:19pm

    Re: Re: Re:

    The publisher's (today content providers) are trying to get everyone to pay for everything while avoiding paying creators a penny? :)

     

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  17.  
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    BearGriz72 (profile), Aug 19th, 2010 @ 8:47pm

    Re: Re: Re: Re: Technical means?

    Link to an email?

     

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  18.  
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    Hephaestus (profile), Aug 20th, 2010 @ 6:36am

    Re: Re: Re: Re:

    "The publisher's (today content providers) are trying to get everyone to pay for everything while avoiding paying creators a penny? :)"

    LOL, that also. I was actually referring to the control they are attempting to exert over every aspect of every piece of content. Setting up a system where no one else can gain entry into their club. Much like the Stationers' Company's monopoly.

    The one difference is, today we have this set of tubes called the internet. Which allows people to route around them and infringe if they charge monopoly prices.

     

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