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):

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.

Filed Under: copyright infringement, democratic underground, las vegas review journal
Companies: righthaven

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  1. identicon
    Anonymous Coward, 19 Mar 2012 @ 11:22am

    Re: Re: Re: Re: Re: 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 Medias copyright by virtue of Pampangos post. Under the Copyright Act, direct liability only attaches, if at all, to the party who controls the decision to copyin 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.

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