The Groove Tiger alerts us to the news coming out of Peru, of a blogger, Jose Alejandro Godoy, who has been sentenced to three years in jail and fined over $100,000 (Google translation of the original Spanish) for writing a blog post about a Peruvian politician, Jorge Mufarech. The post linked to various news reports of criminal charges made against Mufarech in the past, and Mufarech claimed that such links were defamatory. Godoy pointed out that the information he wrote about was well-sourced and came from others, and also that he had offered Mufarech a right to reply, if he wanted it. Yet, the court still found him guilty of criminal defamation, leading to the jailtime. Godoy is appealing, but just the fact that the case has gone this far should be seen as quite troubling.

While we were encouraged by a proposal in Brazil that would make it much more difficult to get content taken down without a trial or giving whoever put the content up a chance to respond (and also by a proposal to make fair use equally as important as copyright), to date, Brazilian courts have a tragically bad history of enforcing censorship based on content someone doesn't like. Google, for example, has been on the losing end of lawsuit after lawsuit after lawsuit after lawsuit in Brazil -- and all of it over third party content.

The latest such example comes from reader Fabop, who notes that Xuxa Meneghel, a well-known host of a Brazilian children's TV show has been able to get the courts to issue an injunction against Google (Google translation of the original Portuguese) because she was upset at the results that came up when people did a search for "Xuxa pedophile."

If you're wondering why people would do such a search -- or why there were Google results on it, apparently, back in 1982, Xuxa Meneghel started in a film, Amor, Estranho Amor (Love, Strange Love) in which she played a pedophile prostitute who seduces an 11-year-old boy. Of course, that's factual information -- but she's upset that when people search on those terms, it returns articles about the movie, and pictures from the movie. This seems somewhat similar to the various attempts to create "right to forget" laws in Europe. Apparently, Meneghel has even been successful in getting the actual movie banned from distribution, even though the company who owns the film rights would like to continue distributing it.

Google is apparently a bit upset that this temporary injunction was issued without anyone bothering to inform Google (Google translation from the original Portuguese, and it sounds like the company will try to fight the injunction.

The company points out -- accurately -- that it's merely indexing the content that's out there, and is not responsible for it. However, Xuxa's lawyer mocks them for this claim, saying that Google can and should block such content, and that the court system in Brazil is "tired" of deciding whether or not search engines are responsible for the content to which they link.

Over in Sweden, it appears that a guy has been fined for linking to an online broadcast of a hockey game. We've heard stories of people getting in trouble merely for linking to unauthorized content, but this story is even more ridiculous. The guy wasn't linking to unauthorized content. He was linking to an online video feed from the official broadcaster, Canal Plus. The issue was that Canal Plus was apparently technically incompetent in how they set up the feeds, and never intended to make the feeds public. But the way they set up the offering, it was easy for anyone to quickly figure out what the full public feed was and this guy then linked to it. In other words, he was fined not for any actual infringement. And he was not fined for linking to infringing content, but for pointing to a publicly available stream that was only public due to Canal Plus' poor engineering choices. And rather than admit that it was its own poor technical skills that were the problem, Canal Plus blamed the guy:

In the summons against the man, Canal Plus called his actions “an assault on the entire operations of pay TV services on the Internet” and that by publishing links to the streams broadcast openly from the Canal Plus website he had illegally made them available to the public.

And the court agreed. That's the really scary part.

Having recently been in Germany, and discussing the state of the law there, I have to say that I was pretty stunned with the level of liability placed on third parties in Germany. I was told, repeatedly, that German law places tremendous liability on third parties, holding them responsible for actions of users in many, many cases. So, perhaps it shouldn't have been a surprise that a news publisher, Heise, was banned from linking to a software company, Slysoft, which makes programs for copying various content from CDs, DVDs, etc., and which can be used to circumvent DRM. Way back in 2005, Heise was sued by folks in the music industry (it's unclear exactly who, and most of my searches are turning up only German reports on this -- so if anyone knows, please fill us in via the comments), and a court ruled that it could not even link to Slysoft's front page, even as the company's lawyers pointed out (correctly) that not linking wouldn't exactly stop people from being able to find Slysoft and its software, and that linking is part of how journalism works these days.

Another court in 2008 agreed, but now, five years after the original ruling, it appears that a court has rejected those earlier rulings and upheld Heise's right to link to the website of a company it was reporting on (found via Glyn Moody). It's pretty amazing in this day and age that this even needs to be discussed, but there's still plenty of confusion over this. A link is just a form of speech. It's about time that courts finally understood this simple fact.

While I've still been linking to NY Times articles for Techdirt posts, if there are decent stories on the same subject elsewhere, I've been starting to use those other sources instead. That's because I know we're getting closer and closer to 2011 -- when the NY Times has promised to lock up its content behind a paywall. The company still keeps pretending that it can have the best of both worlds, and is apparently insisting that the paywall won't remove it from the wider conversation because it will allow a "first click free" sort of program, whereby you'll be able to read an article once if you click through from another site, before being asked to pay. While that might make the NY Times comfortable, it doesn't make me comfortable at all. If there are no other options, I may still link to NY Times content, but I'm certainly going to be a lot more cautious linking to it. Why would I even risk pissing off my readers by a lockout when I can point them to another site that actually wants that traffic?

As the press is still falling for the silly story that Intellectual Ventures is some sort of benevolent invention factory, it's worth remembering that the company has yet to actually invent anything that has come to market, and while it has avoided suing anyone directly, patents from IV are showing up in more and more lawsuits of dubious nature. We first saw a "former" IV patent show up in a lawsuit a year ago. Since then, we've also seen IV "sell" patents to some of its "customers" for use in lawsuits, such as with Verizon and Vlingo.

And now they're showing up even more. Joe Mullin points us to the news that a newly formed patent hoarding company, Oasis Research, which appears to be part of the patent hoarding operation set up by big name patent-attorney-turned-patent-hoarder, John Desmaris, has sued 16 companies, including AT&T, GoDaddy and IronMountain for infringing on a former IV patent having to do with "cloud" storage and online backup. The patents in question are 5,771,354; 5,901,228; 6,411,943; and 7,080,051.

Separately, someone contacted us recently, after receiving a threat from an operation called Webvention, who is using a former IV patent 5,251,294 to claim that that the way a website links to internal pages is patented. Seriously. In looking at the details, it looks like Intellectual Ventures sold off this patent last year, and it was just recently asserted against a big list of companies, including Abercrombie & Fitch, Bed Bath & Beyond, Dell, E*Trade, gamestop, Niemen Marcus, Visa, UPS and others. As you can see, the lawsuit itself is pretty damn vague, but it seems absolutely, patently ridiculous to suggest that the way in which you link to something on a website can violate someone's patent. When will this sort of insanity end?

Intellectual Ventures, in its standard level of absolute secrecy, won't say whether or not it has any financial stake in the outcome but earlier reports have claimed that the company sometimes will sell patents with an agreement that it gets some of any licensing revenue and/or judicial awards.

For all of Intellectual Ventures talk about not suing companies and actually being an invention factory, it's looking very much like the only thing it's unleashed on the world are some amazingly wasteful patent lawsuits on ridiculously over-broad patents that are creating serious waste in the market. And, even if the company really has no part in these lawsuits, it doesn't change the fact that it's adding to the list of ridiculous patent lawsuits by letting those kinds of patents get into the hands of people who file them.

We've been following the lawsuits filed by Righthaven for a few months now. If you haven't been following the story, this is the company, funded by the owner of the Las Vegas Review-Journal, that is suing a bunch of sites (over 100, and increasing rapidly) for reposting content from the LVRJ. In many cases, the lawsuits hit message boards, where the site owners have clear DMCA protections. Also, Righthaven does not issue any DMCA takedown notices -- it just goes straight to suing. Joe Mullin has a story about Righthaven that includes a few more details, including the fact that about 30% of those sued have settled -- but for amounts ranging from $2,185 to $5,000 -- well below the $75,000 demanded. And, none of the settlements have resulted in anyone turning over their domain, as demanded. So, if we assume 30 of the lawsuits have paid $5,000 (we'll take the upper bound), that's $150,000 over the course of about 4 or 5 months. Take away the "cost" of buying the copyrights, and filing the lawsuits (a few hundred bucks) and this hasn't been a hugely lucrative business. Some of the sites that haven't settled are gearing up to fight this in court (we've heard from a bunch), and suddenly whatever Righthaven earned seems to go negative fast if it has to spend time in a courtroom.

But, even more ridiculous are the laughable claims from Steve Gibson, the guy behind Righthaven, and Mark Hineuber, the general counsel for the parent company of the LVRJ. Hineuber is claiming:

"My hope," says Hinueber, "is we will raise awareness of copyright laws, and have more links back to our site, and have less of our material infringed on the Internet."

Yeah, right. Suing people linking to you is going to get more links? Considering that some of the examples of sites being sued included one that posted just 4 paragraphs of a 34-paragraph article... with a link, it seems that these lawsuits are almost guaranteed to lead to less linking.

Gibson keeps claiming that his is not a legal shakedown business, but a technology business. This is pretty laughable too. If they invested in technology beyond "searching Google," they've wasted money here. But even more ridiculous is the claim that this somehow makes business sense:

"Since the advent of the Internet, there has been an ocean of infringements of copyright that have gone unaddressed," Gibson says. "I've also seen that many media companies have been facing financial difficulties. I was inspired to pursue technological solutions and marry them with the available legal machinery."

Actually, no, that's not true. It hasn't gone unaddressed. Lots of companies have tried suing, and so far it's been a dismal failure, costing a lot more money than it ever brought it and calling much more attention to the ability to infringe. To ignore that basic history is pretty laughable.

Amusingly, the article also has the Righthaven folks admitting some "kinks" that need "to be worked out," such as the time it sued the very source for an article (apparently, this has happened more than once). In the one case that we wrote about, after that came to light, Righthaven dropped the lawsuit. I'm guessing that after some more lawyers start fighting back against Righthaven, it's going to discover quite a few more "kinks" in its system.

As you know by now, Rupert Murdoch's The Times (of London) has kicked off its paywall experiment, with an editor there claiming that news publications that don't put up a paywall will go out of business. Perhaps. We shall see... but in the meantime, Rupert might want to find people who understand HTML before he turned on the paywall. Reader Craig sent over a link to a Times Online story that tries to get people to go to the new paywalled site "for full coverage, pictures and video from the Middle East." The only problem? The link is broken. I took a screenshot with my mouse over the link, and you can see that rather than a proper link, the link doubles up on the http at the beginning: http://http://www.thetimes.co.uk/etc.... If you can't see it in the image above, click through for a larger version. Clicking the actual link, of course, gets you a page not found error. Oops. Now, you can say this is a small mistake that anyone can make (hell, we've made it here at times), but for a big professional news organization that are trying to drive people to this new pay site, you would think they would have at least had someone double check the links... On top of this, it really highlights the pure annoyance factor that The Times has created for everyone. Not only is it locking up its content behind a paywall, it makes you go hunting for it, and redirects its audience to a totally different place (and, in this case, not even very well).

It's still amazing that any court thinks that just publishing links to something should be illegal, but it seems to happen again and again. Over in the Netherlands, usenet community FTD, has lost a case filed by a movie studio, because some of its users pointed out links where you could download a certain movie. FTD didn't host the movie. It didn't store the movie. The movie never touched its servers. FTD didn't offer a torrent of the movie. All it did was let users post where the files existed. And the court found that to be illegal and barred. One of these days, maybe we can expect judges to understand basic technology concepts, but it seems like that day is still a long way off.

We've noted in the past some of the similarities, from a legal standpoint, of search engines like Google, and music search engines/bittorrent tracker sites -- and yet the music search sites keep getting shut down. So we thought it was interesting late last year when a small indie label, called Blues Destiny sued both Google and Microsoft because search results on the site pointed to unauthorized copies of Blues Destiny music that was hosted on RapidShare. There were all sorts of problems with the lawsuit, but we wondered if the ruling would at least touch on some important issues concerning music search engines. However, it appears that Blues Destiny folks realized they had no case and dismissed the lawsuit... though it told Google that it still believed the company infringed on its copyrights, and it intended to refile the lawsuit.

Eric Goldman points us to the news that after waiting a couple of weeks for Blues Destiny to refile, and having its lawyers tell Google that they believed Google still violated the company's copyrights, Google has come back and filed for a declaratory judgment that it does not violate Blues Destiny copyrights: So, who knows... perhaps we will get a ruling that could be applicable to other search engines after all...