Rather, the state of daily newspaper journalism only proves English majors should not be allowed to make business decisions. Only English majors could give their product away (i.e., online), then be surprised to see revenues decline.

A few months ago we wrote about a really bad idea that was being floated in Germany: making companies like Google pay for the use of news snippets in services such as Google News. Unfortunately, that idea has now been turned into a concrete proposal for a new law; remarkably, it is even worse than the original plans.

As Udo Vetter points out in a post entitled "Digitally Castrated" (German original), the emphasis of the proposed modification to German copyright law (available as pdf) has shifted: now the primary targets of the law are not only companies like Google, but also ordinary people who blog or post short excerpts of news stories on Facebook or even Twitter, who may be required to obtain a special new license to do so.

Vetter suggests this is because the German publishers have realised that Google would probably rather close down its Google News site in Germany than pay for each snippet, and so they have decided to go after an Internet group who make up in numbers what they lack in revenue: German users of blogs, Facebook and Twitter.

They are likely to be affected because two aspects of the proposed law are vague. It would apparently apply to anyone who makes money from their online writing, and that seems to include things like a few Google Ads or a micropayment system like Flattr. The other uncertainty is what exactly is allowed in the way of unlicensed excerpts from articles. The proposal explicitly mentions that quotations that are currently legal will remain legal. But as Vetter points out, a recent German court decision established that even very short excerpts could be infringing, which effectively guts that apparent safeguard.

This creates a gray area of what will be lawful for ordinary Internet users. And that, in its turn, will create an opportunity for publishers to send out huge numbers of threatening letters to bloggers and others that have quoted from newspapers and magazines. Since few of the latter will have the resources to defend themselves in court, most will simply give in and pay for one of the new licenses the legislation would create.

This will doubtless have a chilling effect on German blogging, and by extension on the use of quotations from newspapers in German Facebook posts and on Twitter too, since users will hardly be keen to fight major battles against well-funded publishers to establish the exact contours of the new law.

The end-result could be a disaster for German blogging, microblogging and social networks. Freedom of speech would inevitably suffer, as people hesitate to challenge articles published in newspapers and magazines for fear of running afoul of the new rules. Old media will be back in the driver's seat -- exactly as the publishers doubtless planned when they lobbied for this law.

One hope is that the extreme nature of this proposal will shock enough people into protesting against it -- the massive street demonstrations against ACTA showed what the German Internet community is capable of. The other is that, if the worst comes to the worst, and it is passed in its current form, the new copyright law would surely alienate so many users of popular platforms like blogs and social networks that the German Pirate party would find itself propelled to even greater political power.

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There is a tsunami of information coming from new media, some of which has the "capacity to destroy civil society and cause unimaginable suffering."

"The fact is that, to generate good information carries a cost. It requires money. Unless you steal it like most new media companies do.

"And, if you bring that argument to its logical conclusion all you'll get on their news sites is a blank screen, because they eventually will have no one left to steal from."

In the top 20 media markets, newspapers can merge with a single radio or TV station -- but not if that TV station is one of the top 4 stations in that market. In other words, newspapers who are struggling to get beyond just being newspapers can finally expand into other media areas. I can't understand why people are freaked out about this. At best, a newspaper can now own a tiny radio or TV station. The fear of only one point of view getting through is totally laughable for a variety of reasons. First, there are more sources of media than ever before in history -- by a long shot. To think that a single TV station or newspaper can dominate the conversation is laughable. Second, since it can't involve a top 4 TV station, it's hard to believe that this new entity will have all that much dominance in the market.

The extortion tactics and fraudulent conduct detailed in this Complaint each constitute a predicate act under RICO of (1) extortion, because such communication were threats intended to obtain money or property premised upon legal action that was a complete sham; and (2) fraud, because each mailing, phone call, and email furthered and executed the scheme to defraud Righthaven’s targets.

Righthaven has a knowing, willful, and specific intent to defraud its targets into entering into settlement agreements under the threat of fraudulent claims.

• The filing highlights that all three of Righthaven's clients have admitted to the press that they decide who to sue, not Righthaven, again indicating that Righthaven is not the actual copyright holder here:

  Officers of each of these client entities have publicly stated that the media entities, not Righthaven, have the right to dictate who can and cannot be sued.
  
  In an article appearing in the Arkansas Democrat-Gazette, Stephens Media LLC’s General Counsel Mark Hinueber is quoted as saying “I can tell Righthaven not to sue somebody.” ...
  
  In the same article, WEHCO Media’s President Paul Smith is quoted as saying that if Righthaven discovers someone has violated WEHCO’s copyright, “it would be [WEHCO’s] decision whether or not to move forward with it[.]” ...
  
  Finally, in The New York Times, MediaNews Group’s Vice President Sara Glines stated that MediaNews Group “reviewed every violation and only approved actions against sites that carried advertising and were not charities.”

• In fact, Eiser takes the above quotes even further. Because this particular lawsuit was over MediaNews (Denver Post) content, and the site that the material was reposted to does not have advertising, she claims that there can be no lawsuit, since Glines (above) noted that they do not approve lawsuits against sites with no advertising. She uses this over and over again to claim a lack of standing to sue, promissory estoppel (i.e., the company promised not to use Righthaven to sue certain sites, but then did so anyway) and that Glines/MediaNews had issued a waiver of sorts. I don't see how this would carry much legal weight, but it is amusing in suggesting that MediaNews was less than truthful.
• There definitely are mistakes in the filing. Whoever wrote it, seems wholly unfamiliar with the nature of the "work for hire" doctrine, and confused about when it would apply.
• It claims that the main lawyer that Righthaven has used in many of its cases, Steve Ganim, is only on the Florida bar, and not allowed to practice law in Nevada, despite doing so. Eiser uses this to claim that Ganim and Righthaven are engaged in the unauthorized practice of law in Nevada. The filing also claims that when another defendant brought this information to light, "Righthaven attorney Shawn Mangano threatened a frivolous defamation action against Leon to shut him up." This would be amazing, if true.
• The filing claims that after a judge indicated support for the claim by the EFF and others that Righthaven is probably not open to winning lawyer's fees in its cases, because its lawyers are in-house, that it suddenly started hiring outside counsel for its lawsuits.
• As others have done, Eiser claims that the Denver Post's "sharing" tools give her an implied license to share the works.
• Eiser claims that "under 20" people saw the article posted to the website, raising questions about how much "damage" was actually done.

  Even if it could show that every single person who read the Rosen Letter on the Lowcountry 9/12 Project blog would have read it at The Denver Post instead, only then would any actual damages be shown, and they would be in the neighborhood of 40 cents.
  
  The South Carolina Supreme Court was offended by a case over five cents in 1918.
  
  Adjusting for inflation, five cents in 1918 was worth 72 cents in 2010, when the alleged damages were sustained.
  
  The approximately 40 cents of damages suffered (not even by Righthaven) is well within the rule of de minimis non curat lex.

• Eiser tries a First Amendment claim, saying that the use was for communicating ideas. This argument is one that I find interesting, but is clearly dead in the water. The courts have been pretty blind on First Amendment implications of copyright law, and they're certainly not going to jump in now on a case like this.
• Eiser tries to bring up the famed BMW v. Gore case to say that statutory infringement rates are illegal. This argument has been made before (in the Jammie Thomas and Joel Tenenbaum cases) without much luck. I can't see them suddenly getting a sympathetic ear here either.
• Eiser claims that Righthaven is technically a debt collector, and that it does not follow proper procedures and laws as a debt collector.
• We've discussed a few times how bizarre it is that Righthaven demands the publisher's domain name in each lawsuit it files, despite that not being a standard remedy (or a reasonable remedy) for copyright lawsuits at all. In this filing, Eiser suggests that this attempt to get others' domain names is effectively a form of illegal cybersquatting on those sites. That one also sounds like a big stretch, but an interesting idea.
• There's another big reach, claiming an antitrust (Sherman Act) violation in seeking to stomp out competitors through a fraudulent claim. Again, a nice try at a novel legal theory, but one unlikely to get very far.