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.

There are some out there who have suggested that search engines such as Google and Yahoo are basically just massive copyright violators, because they scan, index and keep an archive of websites. That copied archive (usually called a cache) is, according to these commenters, an unauthorized copy. Now a court has basically destroyed that argument, noting that putting content online is giving an implicit license for search engines to index and copy. The lawsuit also claimed that individuals who visited the cached version were also infringers -- but the court also rejected that argument, claiming that the implied license extends to those users. The only part of the case that seems to be moving forward is whether or not this implicit license was broken after the lawsuit started and search engines still didn't take down the content. The idea there was that any explicit notification by the content holder might override the implicit license -- and thus search engines should have taken down the content as soon as the lawsuit started (thus signaling an explicit revoke of the license). Of course, the whole thing seems pretty silly. If the guy didn't want his content indexed, he should learn what a robots.txt file is for.