Judge Indicates LVRJ May Have Offered An 'Implied License' To Copy In Righthaven Lawsuits

from the setback-for-righthaven dept

It’s been interesting to watch people’s reactions to the Righthaven lawsuits. Plenty of people find it to be an abuse of copyright law, clearly for purposes outside of what the law is intended to handle. However, some copyright system supporters seem to think it’s wonderful, and they’ve been mocking the various defenses that defendants have been trying out. While not all of the defenses seem to have merit, at least one judge seems quite open to the idea that the Las Vegas Review Journal did, in fact, grant an implied license on its website. In a ruling setting aside a default judgment against a website owner who had not responded to one of the lawsuits, the judge clearly seems to suggest that the implied license idea isn’t so crazy:

The ruling first runs through a quick version of the four factor “test” for fair use, and suggests that the defendant might actually have a case for fair use — noting that, in the court’s analysis, the only factor that goes against the defendant is the fact that an entire article from the LVRJ was used. However, the other three factors appear to weigh in favor of finding fair use. This doesn’t mean that it is, definitely, fair use, but that there’s at least an argument there worth exploring in court.

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.

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Companies: las vegas review-journal, righthaven, stephens media

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Comments on “Judge Indicates LVRJ May Have Offered An 'Implied License' To Copy In Righthaven Lawsuits”

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A Dan (profile) says:

Re: Re:

If you see a protected wireless network, sure, it’s easy to break, but you know they don’t want you using it. They did the equivalent of an unprotected network called “Share Me”. The point here is that they acted like they wanted it, then sued the people who bit without even asking them to stop first. Hopefully I don’t start a rape flamewar with this.

Karl (profile) says:

Re: Re: Re:3 Re:

I sincerely hope you’re never on the jury in an actual sexual assault case.

As it turns out, I was recently on the jury in a sexual assault case.

It was a pretty cut-and-dry affair, where the perpetrator was clearly guilty. But then we found out the victim’s name was “Anonymous Coward,” and we returned a verdict of Not Guilty, because AC’s really need to get their freak on.

The judge disagreed, holding that AC’s should not have sexual intercourse under any circumstances, voluntary or not. He sentenced the perpetrator to a year in solitary, during which time she would only be able to read posts by Darryl, Bob, and TAM.

The case was taken to the Supreme Court, who ruled that the sentence constituted cruel and unusual punishment. But it was too late; the perpetrator had already hanged herself with a noose made out of her own hair. A note, scrawled on the wall in her own blood, read: “Even the bowels of Hell have got to be better than this tripe.”

Anonymous Coward says:

Re: Re: Re:

But what if the only “protection” the network had were that it used “net send” to warn a user he is not authorized, but said user were running an operating system which does not understand the protocol “net send” uses, or has it disabled? And said network were otherwise completely unprotected (not even WEP)?

They could say all they want “you know they don’t want you using it”, but the user really could not know.

This is very similar to either having a browser which does not tell the page about right mouse clicks, or which does not run JavaScript at all (NoScript).

Karl (profile) says:

Re: Re:

So basically, we could have a court finding that failing to use ineffective DRM is equivalent to granting an “implicit license”? And this would be a good thing?

Were it just dependent on the lack of “DRM,” it wouldn’t be a good thing. (Not because of the granting of an “implicit license,” but because it would end up encouraging DRM, and that’s good for nobody.)

But it’s not; it’s also the fact that the articles were originally offered for free, and that users were actively encouraged to share them.

Anonymous Coward says:

Would the average person see ‘Share This Article!’ and think about copyright issues or infer anything other than what the statement says? I’m not talking about all you tech-savvy googleheimers with your blue teeth and yer shiny flat iballs and yer new-fangled tappity-tap psychedelic finger games…

…like my mom, who writes a short story and thinks it should be 1) given to anyone who will read it, 2) thinks that copyright should never end on anything ever, yet 3) can’t understand why on earth she can’t make a copy of a DVD she bought so her grandkids can watch it at their house when they’re not at her house…

If they wanted to, could not LVRJ have avoided much of this confusion with a ‘Link to this Article!’ instead of ‘Share!’ It’s a bit of a trap – share it like we suggest but we’ll sue if you do.

FYI: mom’s on the internet but I don’t think she even knows how to hyperlink. You have been warned.

average_joe says:

Looks like the defendant’s website has ads on it to me: http://www.skyscrapercity.com/ Doesn’t that make it commercial?

I find the judge’s fair use defense analysis a bit suspect. She relies too much on Sony and ignores the Court’s later reasoning in Harper & Row and Campbell.

The de minimis defense seems destined to fail. I’m not surprised the judge choose not to address it.

The implied license defense is interesting, and it’s certainly meritorious, but I don’t see it going anywhere in the end. Encouraging people to share links is not the same thing as encouraging them to post entire articles on the web without permission. And the whole “right-click” argument is just silly.

Of course, all of this will probably soon be moot. The defendant indicated in their motion that they will settle: “If the case cannot be settled, Mr. Klerks intends to assert several meritorious defenses, including fair use, de minimis copying, and implied license.”

It’s a shame that they probably will settle. I’d like to see this decided on the merits.

Karl (profile) says:

Re: Re:

Looks like the defendant’s website has ads on it to me: http://www.skyscrapercity.com/ Doesn’t that make it commercial?

It depends. Are the ads placed there by the owners of the website, or by the webhost? The latter is especially common on “free” hosting sites – the actual webhost doesn’t have to pay hosting fees, in exchange for the presence of ads on their site. (Anyone remember Geocities?) Such sites are more likely to be non-commercial in nature.

Even if the webhosts gained money from advertising, “commercial infringement” would mean that the actual infringers (here, the users of that site) would have a commercial interest in posting the infringing content. I’m pretty sure that’s not the case – I doubt that any users of that site get any portion of the advertising income.

Perhaps the webhosts could be guilty of contributory infringement, but there’s no indication that they encouraged (or even approved of) posting infringing content. Safe harbors should apply, and since Righthaven never sent a single DMCA notice, the webhosts should be exempt from any and all liability.

But this is all moot – because the “implied license” has nothing to do with fair use or safe harbors, and everything to do with the idea that the content is not infringing in the first place. You can’t infringe if you have a license, “implied” though it may be.

average_joe says:

Re: Re: Re:

The authority cited for the implied license argument is Field v. Google, 412 F.Supp.2d 1106 (D.Nev. 2006). That case involved Google’s cache, and I don’t think it is on point enough to be of any use. Search engines serve a different social function than do individual infringers. Google’s use is transformative. The Righthaven defendants’ use is not.

I disagree with the judge and others that the implied license argument is the most meritorious one. I think the fair use argument has more meat on it.

Moz says:

Copyright law just can't handle automatic copying

In the conventional, non-electronic, world, the book you are reading is a physical object. Only one person can read it at a time (within reason).

In the Web World, many people can read the same article at the same time. Why? Because we all have copies of it. The browser copied it for us automatically, and legally.

Now all I am doing is copying my legal copy. Where does it say anything about that in the license?

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