Denver Post Column That Righthaven Is Suing Over May Have Given Implied Permission To Copy

from the oops dept

We already pointed out that Righthaven has signed up MediaNews and is now suing over people reposting content from the Denver Post, but law professor Eric Johnson is pointing out that the very first such lawsuit Righthaven filed may have some problems, specifically since the content that was "reposted" was written as an "open letter" to Tea Partyers. In his blog post on the subject, he notes that not only is the open letter format potentially suggesting it's okay to repost it, but also that the text itself implies that his column is a part of a grassroots effort. Johnson suggests that there's clear "implied permission" to repost the column. I would imagine that would make for quite a fun court battle.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 4:56am

    Can you point us to the copyright law or court ruling that says giving something the title of "open letter" also immediately waives all copyright coverage?

     

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  2.  
    identicon
    Darryl, Dec 16th, 2010 @ 4:57am

    Its a letter from a specific person to a group, that is open to everyone to read

    That does not mean its open for you to do what you like with it, or to 'repost' it for your own gains..

    But an 'open letter' is certainly not the same as 'open source'. As said, its just a letter, publised in the open.

    So its free for everyone to read, and its directed at a specific group, but its still HIS letter.. Open or not..

    After all, he has created something that people are willing to click on his site and read, making him an income.. (you know what thats like Mike!!).

    He created something of value, something people are willing to pay to see.. (yes by add's, and again Mike knows exactly what im talking about)..

    It is after all his creation, and his material, he wrote it one to express his public comment, and 2, to create content that will bring people to his blog or web site or whatever.

    He owns the material, he created it, he edited it and he researched the subject, which takes time, money and effort.

    So why not try to recoup your investment, by stopping others who want to profit off your work, but keep the money..

    They do no work, they do no research, they do no editing or spend their time, and input any talent they may have.

    But they 'repost' someone else who has paid the money, done the work, but they keep all the profit from their page hits..

    And mike, you might want to tell you're people how important you're page hits are for you..

    considing the amount or page real estate you 'give' give advertising.. you must be doing quite well !!!..

    so why should you be able to profit from others work, but not those the created the content..

    And dont give me crap that they can compete like everyone else, thats a bullshit argument.. really.. you expect them to compete against their own creations ?

    When someone copies your material, they are not competing with or against you.. They are stealing off you, and either selling of giving away your product..

    Thats not competition, its theft..

    I know, you will drop the usual one liner, and say "You're wrong".. I know..

    All you appear to be complaining about is the application of the law..

    So is it copyright you hate, or having to obey the law ? or both ? Do you believe that you do not have to obey laws you do not like ?

    Do you think it is right for people to disobey laws that they do no agree with? I wonder..

     

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  3.  
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    abc gum, Dec 16th, 2010 @ 5:04am

    I find the denver post to be quite useful when I need to start the bbq. Other than that, not so much as I do not have any pets. They give this paper away at the grocery on sundays and then ask for a donation, that sounds familiar. As far as reposting Mike Rosen blather, I assumed it was for mocking purposes which should be considered fair use, no?

     

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  4.  
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    abc gum, Dec 16th, 2010 @ 5:17am

    Re: Its a letter from a specific person to a group, that is open to everyone to read

    Darryl -> "Do you think it is right for people to disobey laws that they do no agree with? I wonder."

    Since you have shown interest in the subject, here is a link to some light reading for your spare time.

    http://en.wikipedia.org/wiki/Civil_disobedience

    disclaimer: It is only a link pointing you to reference material located elsewhere. This is in no way an attempt to copy or claim rights to anything found at said location. Linking to content is not copyright infringement.

     

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  5.  
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    Anonymous Coward, Dec 16th, 2010 @ 5:25am

    Re: Its a letter from a specific person to a group, that is open to everyone to read

    RAWR! Strawman strawman strawman! Unfounded assertion! Made up stuff! Blah blah blah! Ignorant statement #453!

    and finally, RAWR!

     

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  6.  
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    Kingster (profile), Dec 16th, 2010 @ 5:26am

    Without being able to see what Lowcountry912 posted, we can't make a judgement call.

    However, DP has this to say on their site about Fair Use:

    Nonetheless, our work is illegally reproduced everyday on websites across the country. The federal Copyright Act protects our right and our readers' rights to make fair use of copyrighted content. We have no issue with people who quote a small amount of a Post story so as to comment on it, perhaps even criticize us. That's the essence of free speech in a vigorous democracy.

    But fair use of our content restricts those who want to reference it to reproduce no more than a headline and up to a couple of paragraphs or a summary of the story. (We also request users provide a link to the entire work on our website). The fair use rule generally does not entitle users to display the whole story or photograph on their website. To do so is a violation of our copyright and we will use all legal remedies available to address these infringements.

    [note: The following was automagically added to my copy/paste from their site! -K]
    Read more: Notice to readers about Denver Post copyright protections - The Denver Post http://www.denverpost.com/ci_16594528#ixzz18HSXrugr
    Read The Denver Post's Terms of Use of its content: http://www.denverpost.com/termsofuse

    They're even kind enough to tack on their terms of use to the bottom of a copy. That there's some FANCY javascript...

     

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  7.  
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    Anonymous Coward, Dec 16th, 2010 @ 5:35am

    Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    Civil disobedience isn't a right, it is at best an affirmative defense for illegal actions. Please learn and understand the difference.

     

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  8.  
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    Paul`, Dec 16th, 2010 @ 5:44am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    How can it be used as a defence against illegal actions when it is solely intended to combat rules/laws/conventions... that are curently accepted by the masses... so are therefore kind of exactly legal.

     

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  9.  
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    ElSteevo (profile), Dec 16th, 2010 @ 5:53am

    After reading the Denver Post article, and Professor Johnson's article, this is my impression of the Johnson article (which you should read)

    Johnson says the Denver Post article, the one in a letter format from Mr. Rosen could "almost could be interpreted as implied permission." Reading the actual article, this is certainly a far stretch from what is written, and is more a tortured interpretation of the written word. Rosen expressing his support for a cause does not imply permission to take a protected work. The Denver Post article is simply and obviously, as even Professor Johnson mentioned in his article, a style choice for the work.

    Of course irony and humor seem to have demanded that Mr. Rosen dump on the very people for whom he espoused support in his letter; it appears Mr. Rosen's open support demands a sum certain.

     

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  10.  
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    Gabriel Tane (profile), Dec 16th, 2010 @ 5:56am

    Re: Its a letter from a specific person to a group, that is open to everyone to read

    I know it's wrong to feed Darryl, but damn it's fun!

    Darryl... let me get this straight... A law professor states that the 'open letter' format may open up the door for fair use... and you say he's wrong? You can barely grasp basic writing composition or grammer... how the hell are you a legal expert?



    "They do no work, they do no research, they do no editing or spend their time, and input any talent they may have."
    That's called 'plagerism', not 'copyright infringement'.

    Have you asked Santa for an education yet?
    http://www.techdirt.com/articles/20101214/02371412269/owners-hiphop-blogs-seized-homeland-secu rity-still-havent-been-told-why.shtml#c1580

     

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  11.  
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    Gabriel Tane (profile), Dec 16th, 2010 @ 5:57am

    Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    aaand spelling fail. I spellchecked everything and forgot to paste the corrected version in. Damnit. That's "grammar" and "plagiarism"... I know.

     

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  12.  
    identicon
    abc gum, Dec 16th, 2010 @ 6:08am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    "Civil disobedience isn't a right"

    - Please indicate where I said this.

    "Please learn and understand the difference."

    - What is it that makes you believe I do not understand this difference? Is it possible you read too much into what I posted?

     

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  13.  
    identicon
    abc gum, Dec 16th, 2010 @ 6:15am

    Re:

    "They're even kind enough to tack on their terms of use to the bottom of a copy. That there's some FANCY javascript..."

    Wait, fair use requires javascript?
    This is cruel and unusual punishment.

     

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  14.  
    identicon
    abc gum, Dec 16th, 2010 @ 6:23am

    Not sure I understand the whole "open letter" thing when the letter was written with the intent to be published in a widely distributed medium. Has there ever been a "closed letter" written with the intent that it be published in a widely distributed medium?

     

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  15.  
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    Berenerd (profile), Dec 16th, 2010 @ 6:23am

    Re:

    When did he say the title suggested that it was free to copy? Did you bother reading the article?

     

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  16.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 6:25am

    Re:

    Yes, but wait! If that is the case, then this post on TD would be wrong, and this latest attempt to smear righthaven wouldn't be valid. Now that would truly be troubling!

     

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  17.  
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    Berenerd (profile), Dec 16th, 2010 @ 6:29am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    You understand the Civil War was "Civil Disobedience". Where would we be without it?
    AC, go back to bed with Daryl cause you both got out on the wrong side of it this morning. Even for you two this is far fetching.

     

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  18.  
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    Marcel de Jong (profile), Dec 16th, 2010 @ 6:34am

    Re:

    Parody is a protected form of free speech. Reposting those articles might be seen as parodies of themselves, so yes. :)

     

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  19.  
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    The Groove Tiger (profile), Dec 16th, 2010 @ 6:38am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    I know D.A.R.R.Y.L.'s posts are sometimes a bit illegible (he's just learning how to be a real boy, after all), but he didn't say "a right", he said "right" as in "correct".

    You may proceed to get your foot out of your mouth now. You're welcome.

     

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  20.  
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    btr1701 (profile), Dec 16th, 2010 @ 6:59am

    Re: Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    > How can it be used as a defence against illegal actions

    It can't be. Civil disobedience by definition is a violation of the law. Those who engage in it should be prepared to go to jail for their cause. After all, that's exactly what happened to Martin Luther King and Ghandi.

     

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  21.  
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    btr1701 (profile), Dec 16th, 2010 @ 7:00am

    Re: Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    > You understand the Civil War was "Civil Disobedience".

    Actually, the Civil War was an armed insurrection.

     

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  22.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 7:06am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    Copyright disobedience. It just sounds better.

     

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  23.  
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    Gabriel Tane (profile), Dec 16th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    I would refer to it as more of a failed attempt at independence from a governing body. But at that point, we're just splitting semantics.

     

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  24.  
    identicon
    Colin, Dec 16th, 2010 @ 7:53am

    Re: Re:

    How would TD be "wrong"? They wrote that a law professor thinks there might be a case for fair use. Are you denying that that's what the professor thinks? Whether or not it is fair use is irrelevant. Good try though!

     

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  25.  
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    ElSteevo (profile), Dec 16th, 2010 @ 8:21am

    The law professor never said it was fair use, he said it "almost could be interpreted as implied permission." Does anyone really think that phrase 'could almost possibly be misinterpreted as the basis for, perhaps, a feasible, or even a viable, defense' to the legal action.

    Or is that just too tenuous?

     

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  26.  
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    Anonymous Coward, Dec 16th, 2010 @ 8:33am

    Re: Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    No, that was an armed uprising. Not quite on the same level. Civil disobedience is sort of like not sitting in the back of the bus. Under the laws of the day an illegal act, but one that can (and was) fought in the courts of law and public opinion.

    Civil disobedience by definition is breaking the law. If you call piracy civil disobedience, you are implying that it is an illegal act.

     

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  27.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 8:35am

    Re: Re:

    Again, parody (and all other issues along these lines) are affirmative defenses. You admit to using the material, characters, content, whatever, but use the defense of parody to avoid criminal consequences.

    The writer does not appear to be claiming parody, rather he is claiming that it was "in the public domain" because it was an open letter. Sort of a different kettle of fish.

     

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  28.  
    identicon
    david, Dec 16th, 2010 @ 8:53am

    shaky legal argument

    I can appreciate the sentiment of Professor Johnson's post regarding the permission issue, but I don't think his comment was well thought out. The "implied license" argument is, at best, weaker than the argument that the repost is a fair use.

    Non-exclusive, implied licenses which are unsupported by consideration (nothing of value was exchanged) and established only through the conduct of parties are revocable. This is a well established doctrine. And, as you might image, such licenses are often revoked prior to the filing of a lawsuit. Some courts have even held the filing of the lawsuit itself is sufficient to establish the revocation.

    The better argument is that the repost was fair a use of the work, especially since the original article involves some political expression. Political expression is sometimes given stronger protection under the fair use doctrine because of the interplay with the first amendment. Still, success ultimately depends on the factual circumstances of the repost (which I have not seen) among other things.

     

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  29.  
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    The Infamous Joe (profile), Dec 16th, 2010 @ 9:44am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    This is exactly why I do my best not to insult someone's spelling/grammar. That, and for all I know, English is his second/third/fourth language. It's always better to debate the content of the message than the words typed.

    Now, in Darryl's case, English seems to be his fist language, and, yes, he seems to type with his hands in oven mitts. I don't have to worry about that, because I just skip anything he posts. Try it, it's great.

     

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  30.  
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    The Infamous Joe (profile), Dec 16th, 2010 @ 9:52am

    Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    PS- It's actually dammit. :P

     

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  31.  
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    Gabriel Tane (profile), Dec 16th, 2010 @ 10:46am

    Re: Re: Re: Re: Its a letter from a specific person to a group, that is open to everyone to read

    Meh... I always take Darryl's points to the mat on logic alone... I just toss the grammar and composition in as payment for the general annoyance of him posting.

    I never call people on spelling unless it's tongue-in-cheek... I'm a horrible speller and I know it. But as far as 'dammit' vs 'damnit'... I stand by my spelling :p I know it's wrong, but I'm using it as a protest. The word is a bastardization of "Damn It", so I'm running them together in a more logical fashion. Although, another part of me hates the spelling of "damn" because I believe in phonetics over 'correctness'... dam(n/m)it... now I'm torn. :/

     

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  32.  
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    Marcel de Jong (profile), Dec 16th, 2010 @ 3:26pm

    Re: Re: Re:

    I hope you realize, that I was making a joke with that comment. It was not meant to be as a serious explanation of it all.

    For instance, how can reposting an article be parody in and of itself? I was taking the mickey.

     

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  33.  
    identicon
    Anonymous Coward, Dec 16th, 2010 @ 7:11pm

    Re: Re: Re:

    TD can be wrong by only selecting a certain side of the story to show. When that side is shown to be wrong, it would appear that TD also got on the wrong horse.

    You can go back through the righthaven articles on TD and see the trends for yourself. TD hates righthaven. They hate the idea, they hate the concept, and they hate what they are doing. So when they get to pour a little more haterade on the fire, they will do it.

    Having a professor say it isn't exactly like having a judge say it. I am certain if the fine staff of TD took a while, they could find and equally well placed law professor to state the opposite. But that opposite would not support what is being pushed here, so you don't get to see it.

    This is why you have to remember that TD is an opinion blog, and a very, very slanted one at that. You won't get both sides of the story unless you going looking for the other side elsewhere, because it sure won't come up here!

     

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  34.  
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    The Infamous Joe (profile), Dec 16th, 2010 @ 7:27pm

    Re: Re: Re: Re:

    Yet, here you are. I'm sure TD appreciates the page views.

     

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  35.  
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    The Infamous Joe (profile), Dec 17th, 2010 @ 4:00am

    Re: Re: Re: Re:

    Yet, here you are. I'm sure TD appreciates the page views.

     

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  36.  
    identicon
    abc gum, Dec 17th, 2010 @ 4:55am

    Re: Re: Re: Re:

    - haterade -

    Is this a new energy drink ?

     

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  37.  
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    Gabriel Tane (profile), Dec 17th, 2010 @ 7:47am

    Re: Re: Re: Re: Re:

    No, I think that's the kool-aid that we Masnick Cultists drink when we hatein. Either that or the drink we use to replenish our hate-rolytes and hate-rients after exhausting ourselves with hate-xertion.

    So... Is it in you?

     

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  38.  
    identicon
    Anonymous Coward, Dec 17th, 2010 @ 12:49pm

    Re: Re: Re: Re:

    You better give the mickey back. Disney will get mad.

    Actually, I could picture where, with a few extra words added before or after, you could in theory turn something into a parody of itself. Not easily, but it might be possible.

    No mickey required.

     

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  39.  
    identicon
    ike, Jan 7th, 2011 @ 12:30pm

    Re: Its a letter from a specific person to a group, that is open to everyone to read

    That does not mean its open for you to do what you like with it, or to 'repost' it for your own gains..



    So you're saying I can't forward a mail I receive, not even to other intended recipients.

    So you're saying I can't post mails I receive, not even for news reasons.

    Both or either may be true by the letter of the law, but I suspect neither would fly as a legal argument.

    The rest of your post talks about how the letter has value. It's true, but completely irrelevant to the question of whether I can legally post the letter or not.

     

    reply to this | link to this | view in thread ]


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