New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability

from the good-job dept

One of the key cases in the Righthaven saga is the case against the Democratic Underground. While it seemed to take a backseat to the Hoehn case, the Democratic Underground case was one of Righthaven’s first big overreaches, and was rather important for revealing that the copyright transfer between Stephens Media’s Las Vegas Review Journal and Righthaven was a complete sham. On Friday there was another ruling in that case that actually makes two very important points that could be quite helpful in other cases (even if this is only at the district court level). As put forth in the ruling (pdf and embedded below):

THE COURT HEREBY DECLARES AS FOLLOWS:

1. That Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Cartoon Network LP v. CSC Holdings, Inc,, 536 F.3d 121 (2d Cir. 2008).

2. That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. ? 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground and against Counter Defendant Stephens Media, LLC.

That first one is the really important one. Righthaven relied heavily on the fact that it could sue sites that had not officially designated a DMCA agent, arguing that if you don’t do that, you don’t get any of the DMCA safe harbor protections. While you absolutely should designate an agent if you run a blog and allow any commenting on your site, I’ve always suspected that if it went to court, a site that did not designate an agent wouldn’t automatically be liable for postings of its users. That’s because it’s just common sense that liability should be on the person doing the posting, not the tool used to do so — even if the owners of the tool didn’t designate a DMCA agent.

And that’s basically what part 1 of the ruling above states. Even without a designated DMCA agent, the court found that the Democratic Underground site was not liable for direct infringement, because there was no element of “volition or causation” by the site itself. This is pretty important, and hopefully other sites that are sued without having designated an agent will similarly push back on claims that this automatically makes them liable. Good to see common sense applied here.

The second point is also important, noting that a five sentence excerpt of a longer article, with a link back to that article, is fair use. Considering how many newspapers have been trying to claim otherwise, it’s nice to see this stated in black and white yet again.

Kudos to Judge Roger Hunt for a simple and to-the-point affirmation of common sense against Righthaven.

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Comments on “New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability”

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46 Comments
Anonymous Coward says:

Re: Re: Re:

There could have been a claim for secondary liability, but there wasn’t. The case was about direct infringement. Mike is trying to twist it into secondary liability, but that’s not the issue Judge Hunt was addressing.

Secondary liability was not the issue in the motion for summary judgment: http://ia700509.us.archive.org/5/items/gov.uscourts.nvd.75386/gov.uscourts.nvd.75386.168.0.pdf

This is just another example of Mike running with a story about copyright without understanding the case he’s writing about.

GMacGuffin says:

Re: Re: Re: Re:

I honestly don’t think it’s a fact-twist, but more about brevity.

The court held “[t]hat Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting
until after this suit was filed.”

Since DU didn’t post the article, the way to get at them for infringement would be … secondary liability (which is a nice, short, blog-friendly descriptive phrase).

The Court in essence was asked to rule that 1) they didn’t do it and 2) even if they did, it was fair use. One moots the other, but this was about a declaration of DU’s rights and obligations rather than a defensive issue of liability. And the court agreed with DU.

Anonymous Coward says:

Re: Re: Re:2 Re:

” Nor did they have any knowledge of the posting
until after this suit was filed.”

It’s another reason why the judge got it wrong. By his ruling, it makes being difficult or impossible to serve as an excuse for not being liable. He has just opened another way for those who seek to violate copyright to actually do the deed. Make it really hard to get served, and then you can claim ignorance!

GMacGuffin says:

Re: Re: Re:3 Re:

Oh, now I get where you are going here. But the problem with your argument is that failure to formally designate an agent for DMCA purposes does not necessarily mean that DU was difficult to serve. Righthaven’s claim was procedural – you have to send your $105+ and designation of agent to the US Copyright office to fall under the DMCA safe harbor. Many many blogs do not do that, despite often having a DMCA takedown address listed on their site. The issue of loss of safe harbor doesn’t usually come into play, because only idiots, golddiggers, and folks like Righthaven sue sites over third-party posts.

The court was not asked to and did not address the issue of the agent’s designation. Righthaven was dismissed for lack of standing before the case got there. DMCA was not in play.

One of Mike’s points in this post was that losing DMCA safe harbor (solely for failure to pay the Copyright office) does not mean that a site is therefore liable for third-party posts. Lacking safe harbor just means the site is analyzed under traditional secondary liability standards. Here, no go.

Gwiz (profile) says:

Re: Re:

You seem to be conflating direct and indirect liability.

Not really, I think Righthaven was arguing that Democratic Underground (a third party service provider) was guilty of direct infringement (because they didn’t have a DMCA agent) and that would be the part considered secondary liability in this case. The ruling basically says that not having a designated agent isn’t enough, there has to be “some element of volition or causation” by the service provider.

Anonymous Coward says:

Re: Re: Re: Re:

The issue is that a lack of response (and the lack of the ability to serve a DMCA notice properly) under the law effectively creates liability. The judge got this part wrong, because DMCA is pretty much directly aimed at service providers to take action or risk becoming liable themselves.

That this company was apparently not easy to serve could be taken as an indication that they were trying to avoid their legal liabilities.

Gwiz (profile) says:

Re: Re: Re:3 Re:

Well, now I have read the order as well as the motion that it granted, and secondary liability was never the issue.

I haven’t read the whole motion yet either (it’s not loading on my computer for whatever reason and I’ve been very busy today), but I think you are missing the fact that the whole case is about secondary liability. Righthaven/Stephens sued the Democratic Underground and David Allen for what a user posted in the comments section on their website. This isn’t about D.U. infringing, it’s about a completely different person who posted something in their comment section. That would be the very definition of secondary liability – holding the tool responsible for what a user does.

Anonymous Coward says:

Re: Re:

A necessary pre-condition for the imposition of secondary liability is that an act of direct infringement has occurred. In this case that act would be whether or not the excerpt and link to the entire article constituted an act of direct infringement. Here the person who posted the excerpt and link did infringe one of the rights enumerated in copyright law. That much is clear. However, not every infringement is illegal as the Fair Use Doctrine creates an exception, and in the case of politically-oriented infringements Fair Use is analyzed with even greater vigor than might otherwise be the case, and precisely because one of the most fundamental tenents of the First Amendment (in fact, its original reason for being) is to preserve to the greatest extent possible political speech.

Accordingly, it hardly comes as a surprise the the affirmative defense of Fair Use was accepted, thus nullifying the act as being direct infringement as a matter of law. Direct infringment being absent, indirect infringement under secondary liability doctrines fall by the wayside and are of no moment. In fact, even if the court had held otherwise and decreed that the act comprised direct infringement unsanctioned by the Fair Use Doctrine, it does not necessarily mean that a website is subject to secondary liability. Each form of secondary liability has is own defined rules, and it appears from the limited facts presented that none of those rules were satisfied sufficient to establish secondary liability.

The truth be know, the imposition of secondary liability is a rare occurrence, and in each instance it has been imposed the acts of such parties have invariably been much more involved and overt than than of a mere bystander. To call the decision here important is truly quite a bit over the top, bordering on puffery.

Much is made that the failure to designate a DMCA agent is somewhat of a technical administrative error that still preserves safe harbor under Section 512 of the DMCA. This is not correct. By failing to do so the site lost its right to rely upon the safe harbor. Instead, it exposed itself to an ordinary claim of copyright infringement. Even without safe harbor, however, general liability rules continue to apply without change. Direct infringement must be established, and secondary liability must likewise be established. Here these legal rules were applied, and in the absence of direct infringement by the successful assertion of the Fair Use Doctrine, secondary liability could not have transpired as a matter of law.

In other words, the holding here is hardly what I would consider to be a truly important point that will somehow help reshape the law. The law was long ago reshaped, and all this case does is rely upon the resphaping that transpired many, many decades ago then the First Use Doctrine was incorporated into federal common law by the federal courts.

Anonymous Coward says:

Re: Re: Re:

My point was that the motion for summary judgment and the order that granted it (the subject of this article) were never about secondary liability. The issue was liability for direct infringement.

Mike has conflated direct and indirect liability, and he’s tried to turn a case about the former into a case about the latter. All Mike has really done is prove yet again that you can’t believe anything he says about a copyright case.

I don’t think Mike can even help it. I used to think his misrepresentations about copyright cases were intentional. But now I think he just doesn’t know what he’s talking about, and he’s blinded by an incredibly deep and perverted bias.

Anonymous Coward says:

Re: Re: Re:2 Re:

Direct infringement leads to direct liability. Indirect infringement leads to indirect liability, i.e., secondary liability.

The fact remains that the case was not about secondary liability, and Mike misconstrues and misrepresents a copyright case–again.

Is five minutes of research before you post an article too much to ask, Mike?

CrushU says:

Re: Re: Re:3 Re:

“Even without a designated DMCA agent, the court found that the Democratic Underground site was not liable for direct infringement, because there was no element of “volition or causation” by the site itself. This is pretty important, and hopefully other sites that are sued without having designated an agent will similarly push back on claims that this automatically makes them liable.”

This is why it was important for secondary liability.
Secondary Liability was NOT ruled on, you are correct. The point is that Secondary Liability is what *actually happened*, if any liability were to apply: DU did not post the snippet themselves.

The ruling states that Direct Liability DOES NOT APPLY here. Which seems like common sense, but the idea is that there have existed suits against sites just like this trying to get them for Direct Liability, implying that just because they have no DMCA Agent, they are Directly liable. This is not true, and the ruling supports this fact.

In essence, this ruling helps cement that Secondary Liability (Site whose users post content) should NOT be dealt with the same as Direct Liability (Site that posts content), regardless of whether they have a DMCA Agent or not.

TtfnJohn (profile) says:

Re: Re: Re:

I think Mike is more concerned with the fact that this ruling clearly states, as you say, once again the difference between secondary and primary liability and once again spells it out.

Newspapers and other media companies have been trying to say the opposite which is what created Righthaven in the first place. The ruling simply, as you say, spells it out simply and plainly. Hopefully simply and plainly enough for those in the “content” industry can understand.

saulgoode (profile) says:

Re: Re: Re:

Here the person who posted the excerpt and link did infringe one of the rights enumerated in copyright law. That much is clear. However, not every infringement is illegal as the Fair Use Doctrine creates an exception,…

While I basically agree with what you are saying, I would object to your usage of the term ‘infringe’. Fair Usage is not an ‘infringement that is not illegal’; Fair Use is not an ‘infringement’ at all. Section 107 states this explicitly:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, … is not an infringement of copyright”.

Anonymous Coward says:

Re: Re: Re: Re:

This is a fair point. The fair use provision of copyright law is not a model of clarity because it declares fair use to constitute an affirmative defense, and it is basic black letter law that affirmative defenses can be waived by the failure to assert them in a timely manner.

The 2nd Circuit immediately comes to mind where the failure to assert the defense may very well cause an alleged infringer to lose.

I say all this only because I have seen many circumstances where courts have very strictly applied the requirement for pleading an affirmative defense, and later attempts by a defendant to raise it have fallen on deaf ears.

Mike Masnick (profile) says:

Re: Re:

Direct infringement is a dumb argument to begin with. What about secondary liability? The title of your article mentions it, but then you only discuss direct infringement. You seem to be conflating direct and indirect liability. Can you explain how the text you quoted addresses secondary liability?

Democratic Underground did not post the text. They could only be guilty of secondary liability for being the service provider that had the text posted. The issue for DU was secondary liability, because they didn’t post the text.

The ruling makes it clear that even if you don’t designate a DMCA agent, you might not be liable if you are the service provider (i.e., secondary liability is not automatic as some have argued).

Anonymous Coward says:

Re: Re: Re:

Nope. The issue was direct liability, which is why Judge Hunt’s order speaks only to direct infringement. You’re simply seeing what you want to see. Read the motion for summary judgment, and read Judge Hunt’s order granting that motion. The issue is direct infringement. Nowhere is secondary liability even mentioned.

Why can’t you just admit that you’re wrong? I really dont get you, Mike.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Nope. The issue was direct liability, which is why Judge Hunt’s order speaks only to direct infringement. You’re simply seeing what you want to see. Read the motion for summary judgment, and read Judge Hunt’s order granting that motion. The issue is direct infringement. Nowhere is secondary liability even mentioned.

Why can’t you just admit that you’re wrong? I really dont get you, Mike.

I think it’s you who misunderstands the issues at play. The issue of safe harbors is *only* for secondary liability. The entire question is premised around whether or not DU is liable for the *direct* infringement of a third party. The fact that the court finds that it is not, despite not having registered for the safe harbor protections is a protection of our basic recognition of not making a secondary site liable for the direct infringement of a user.

The court talks about direct infringement because that’s the key issue. The reason that DU’s actions do not give rise to direct infringement is *because* it’s a secondary party.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nope. You’re really twisting it to try and make it mean want you want it to mean, but secondary liability simply is not the issue. Judge Hunt didn’t even bring up the DMCA in his order. You’re completely making this up. The issue was whether DU was liable as a direct infringer. Read the motion for summary judgment (the motion this order granted).

You are simply wrong. And with five minutes of actual research you would know that I’m right. Don’t worry, I know you won’t admit your mistake. You’ll disappear from the debate. Again.

If you like, I’ll link to the motion and quote all the relevant text to prove my point. Let me know. I won’t hold my breath though.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

Nope. You’re really twisting it to try and make it mean want you want it to mean, but secondary liability simply is not the issue. Judge Hunt didn’t even bring up the DMCA in his order. You’re completely making this up. The issue was whether DU was liable as a direct infringer. Read the motion for summary judgment (the motion this order granted).

Wow. It’s not *me* doing the twisting. He didn’t bring up the DMCA because this isn’t about the DMCA. The question — as I stated earlier — was whether or not a service provider can be directly liable for the works of a user of the service. That’s a question of secondary liability. The DMCA protects against that with its safe harbors, and the presumption by many (such as Righthaven) is that without the safe harbors, the liability is clear. The point here is that the judge ruled the common sense path, such that the safe harbor is not necessary.

Anonymous Coward says:

Re: Re: Re:4 Re:

LOL! Can you not read?

Go to the motion for summary judgment, starting at the bottom of page 7 (not PDF page 7, but page seven as indicated by the number at the bottom of the page):

Democratic Underground is entitled to a declaration that it did not infringe Stephens Media?s copyright by virtue of Pampango?s post. Under the Copyright Act, direct liability only attaches, if at all, to the party who controls the decision to copy?in the case of an online forum, the user who uploaded the material. An online forum host like Democratic Underground, whose role is limited to hosting the material cannot be liable for direct infringement as a matter of law. *** Accordingly, the fact that Democratic Underground operates the DU Website, upon which a third party posted allegedly infringing material, does not state a claim for direct copyright infringement.

The whole argument in the motion for summary judgment is about DIRECT LIABILITY. It is about DU being directly liable for the infringement.

Point me to ANY language in the brief or in the judge’s order that supports your interpretation–you cannot.

Stop trying to make it say what you think it should say, and look at what it actually says.

“The question — as I stated earlier — was whether or not a service provider can be directly liable for the works of a user of the service. That’s a question of secondary liability.”

LOL! The issue before the court was DU’s motion for summary judgment, and they wanted a declaratory judgment that they were not directly liable for the infringement. They were not asking for a judgment that they were not secondarily liable.

Ask you friends at the EFF to explain it to you, because (as usual), you don’t have a fucking clue.

I’m trying to explain it to you so you can see your error, but you’re either too fucking stupid or hard-headed to see the truth.

Look at the motion I linked to. Look at the pages I pointed to. Look at the text I’m quoting. They all explain perfectly clearly that the issue is whether DU is directly liable. The issue is not secondary liability.

God, you’re an insufferable, arrogant fucking asshole, Mike. I called you out for being wrong and you’re too much of a fucking idiot to even see your mistake when it’s spelled out for you.

You’re a complete fucking joke.

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

Go to the motion for summary judgment, starting at the bottom of page 7 (not PDF page 7, but page seven as indicated by the number at the bottom of the page):

*sigh*

I don’t know why I put up with your insults, but I’ll try this one more time. The REASON that DU is NOT liable for *direct infringement* is because of our basic notions of secondary liability. Those notions are that we DON’T make service providers liable for *direct infringement* of users.

What I noted, and what the part you’re quoting in fact shows, is that common sense concepts around secondary liability applied here, DU is NOT directly liable BECAUSE at best it could only be secondarily liable.

My point was that MANY people including Righthaven have taken the DMCA’s safe harbors to mean that if you don’t file for the safe harbors, the service providers become directly liable.

The ruling here protected our notions of secondary liability protections by stating that as a secondary party, DU was not *directly* liable.

This isn’t complicated. And I could do without the direct insults when the fact is that it’s you who doesn’t seem to comprehend this topic.

Anonymous Coward says:

Re: Re: Re:6 Re:

This case has nothing to do with secondary liability.

1. Righthaven sued DU for direct infringement.
2. DU filed countersuit seeking a declaration that they were not a direct infringer.
3. DU moves for summary judgment on whether they’re liable for direct infringement.
4. Judge Hunt grants motion, declaring that DU is not liable for direct infringement.

Nowhere at all was secondary liability the issue.

“The REASON that DU is NOT liable for *direct infringement* is because of our basic notions of secondary liability.”

Nope. DU is not liable for direct infringement because they are not direct infringers. The analysis has nothing to do with “basic notions of secondary liability.” It has to do with notions of direct liability. You’re twisting it into something it’s not, by bringing up secondary liability which is irrelevant.

“DU is NOT directly liable BECAUSE at best it could only be secondarily liable.”

Nope. DU is not directly liable because of primary liability analysis. That “at best it could only be secondarily liable” is irrelevant.

“The ruling here protected our notions of secondary liability protections by stating that as a secondary party, DU was not *directly* liable.”

Nope. The ruling said nothing that “protected our notions of secondary liability protections.” All the ruling said is that DU is not directly liable. It said nothing about whether they were secondarily liable. Secondary liability was simply never the issue, and secondary liability doctrine is completely irrelevant to this ruling.

It’s amusing how you are trying to twist this to be about secondary liability, when secondary liability is completely irrelevant.

Anonymous Coward says:

Re: Re: Re:2 Re:

The motion is here: https://www.eff.org/node/67807

Starting on the bottom of Page 7. It’s all about how DU is not liable for direct infringement as a matter of law.

Just once–ONCE–be a man and admit you’re wrong. It’s not even a big deal that you’re wrong–but just admit it.

A claim for secondary infringement would have made more sense, but that’s not what the issue was in this case. The motion linked to makes that perfectly, 100% clear.

Just admit your mistake, Mike.

Anonymous Coward says:

Sadly, if Righthaven had the money, they could fight the first point and very likely win. The ruling goes pretty much directly against the DMCA law. There is a point where the inability to properly serve a DMCA notice would impact the rights holder, which in turn would create liability for those who appear unable or unwilling to take action – which is a very standard part of the DMCA process.

It’s a nice ruling. It wouldn’t stand on appeal, but a nice ruling. It’s like the judge had to squint and ignore most of the DMCA law to get there though.

Anonymous Coward says:

Re: Re: Re:

The whois address is a PO Box, it’s clearly not able to be directly served, you would have to allow time for the mail to be sent, for the registered notice to get picked up, for the item to actually get picked up, etc. It would appear to be pretty much a dead end as far as DMCA goes, because it would take too long to serve the website owner.

The courts haven’t ruled to clearly on that issue yet – DMCA is suppose to be a fast remedy of a copyright issue, no harm, no foul. By making a site owner intentionally difficult to reach, it would hurt the content owner’s ability to remedy the situation in a reasonable amount of time.

nasch (profile) says:

Re: Re:

The ruling goes pretty much directly against the DMCA law. There is a point where the inability to properly serve a DMCA notice would impact the rights holder, which in turn would create liability for those who appear unable or unwilling to take action – which is a very standard part of the DMCA process.

My understanding is that section of the DMCA only removes liability from service providers who comply; it does not create any new liability that wouldn’t exist without the DMCA. Wikipedia’s entry seems consistent with this, though I didn’t read all of it. If that’s not correct, perhaps you can clarify with references.

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

Anonymous Coward says:

Umm, this is not a new point. That is what the court held in CoStar v. LoopNet. The argument by CoStar in that case was that the DMCA preempted Netcom by establishing a congressionally created uniform system for resolving online copyright disputes where third parties had posted content. The district court and the 4th Circuit disagreed with that.

Mike Masnick (profile) says:

Re: Re:

Crickets. It’s really, really sad that you can’t just admit your mistake. WTF?

Holy fuck you little moronic child. Grow the fuck up.

Some of us have a life, and don’t respond to temper tantrum throwing incorrect assholes in the comments all day. I’ve made my point. I stand by the post. You disagree, but you’re wrong.

I fully expect you to continue to throw a temper tantrum, but my time is best spent doing shit that matters, rather than dealing with your silly temper tantrums.

Anonymous Coward says:

Re: Re: Re:

OMG ROFLMAO!

You are such a slimy, stupid fuck. You can’t admit that you completely fucked this one up. Too fucking funny.

You are a complete fucking idiot who obviously doesn’t do any research before you pump out the next idiotic article.

Five minutes of actual research and you would have known this case isn’t about secondary liability. And even when the mistake is pointed out to you, you continue to demand that you are right.

And you are too much of a piece of shit to even admit that you made a mistake.

LOL! I’m laughing so fucking hard I’m crying.

God, you’re an idiot.

Anonymous Coward says:

Shocker. Mike gets called out for getting the story completely wrong. He comes into the comments and denies it, refuses to do even a basic amount of investigation into the story, and then refuses to admit he’s wrong when it’s proven that he is.

Just another day on Techdirt. Mike just sees what he wants to see, lies to his readers, and has zero accountability.

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