Judge Indicates LVRJ May Have Offered An 'Implied License' To Copy In Righthaven Lawsuits
from the setback-for-righthaven dept
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.