by Mike Masnick
Wed, Aug 24th 2011 3:03pm
by Mike Masnick
Fri, Jul 29th 2011 2:37pm
from the and-another-one-down dept
That said, Mahan refused to make the dismissal of the case "with prejudice," meaning that Righthaven can (and probably will) refile the lawsuit, using the newly amended agreement to claim standing. Until there are conclusive rulings on that amended agreement, we may have to go through this whole process a few more times before some judge finally tells Righthaven to give up.
by Mike Masnick
Mon, Jun 27th 2011 4:15pm
Righthaven Begs To Be Put Back Into Case That Judge Dismissed The Company From, Claiming It's Fixed All The Problems
from the mere-technicalities dept
Of course, it seems that Righthaven may have a serious uphill battle here. The judge in the case had already seen the amended agreement and suggested that it was cosmetic, at best. Judge Hunt clearly saw this for what it was: a highly questionable attempt to pretend Righthaven had copyrights it never actually had, to give it only a very limited right to sue -- and, an attempt to shield (the much larger) Stephens Media from liability for having filed questionable lawsuits. I would not be surprised to see the judge reject this as just a superficial attempt to get around the clear intention of the Copyright Act to bundle the right to sue with the actual rights prescribed in the Act, and not to allow companies like Righthaven to merely buy lawsuits.
by Mike Masnick
Thu, Jun 23rd 2011 7:20am
from the down-they-go dept
by Mike Masnick
Wed, Jun 22nd 2011 11:37am
from the let's-debunk-this-now dept
"While many supporters of net freedom continue to celebrate the recent decision penalizing the Rightshaven lawsuit mill, open source advocates are beginning to understand the brutal implications for enforcing licensing terms. Simply put, open source projects without CLAs (Contributor License Agreements) will not be able to sue anyone for breaking the license agreement. Smaller, less-professional projects will have to choose between accepting casual contributions and enforcing the license.I can't decide if this is the work of someone who's just trying to drum up bogus support for Righthaven, or who simply doesn't understand the Righthaven ruling at all. Nothing in the Righthaven ruling supports what's written above. Whoever wrote it appears to be trying to paint a picture saying that the Righthaven ruling makes it more difficult to transfer copyright. That's not true. All the Righthaven ruling said was that you can't transfer solely the right to sue over copyright. That's it. That has nothing to do with open source development, as I don't know of anyone in the open source world who is trying to just transfer the right to sue, while retaining the actual Section 106 rights under copyright.
The limit threatens much of the casual work done by corporate partners. While it's usually relatively easy for small, independent developers to sign a contract giving away all rights to the code, it's another matter for a corporate developer to get permission from the legal department. If the company is paying for the development-- something that is common with many projects supported by companies-- the company owns the code and the company needs to sign the document. This will be too much red tape for many developers.
The interpretation also dramatically threatens an important right built into many open source licenses, the right to fork the code. In the past, anyone could take a project protected by the Gnu Public License and start adding their own enhancements. Many projects have forked over time when developers have disagreements over the best path.
The trouble is that the new team creating the fork won't have CLAs governing the old code making it impossible for them to enforce the license. Any forked project won't be able to enforce all of the rights, a crucial issue because the judge is requiring plaintiffs to be able to control the copyright completely before suing.
The matter also threatens some CLAs that transfered an exclusive reproduction right to any project. Some CLAs don't transfer much more than the right to sue, something the court said couldn't be transfered. If projects don't renegotiate these agreements with all contributors, they'll be unable to enforce their license.
While all of these limitations can be overcome with more legal paperwork, they still threaten the more casual open source projects. Teams will need buildmasters, coders, architects and lawyers if they want to create anything lasting. Unfortunately, the strength of open source licenses are directly related to the strength of copyright."
The idea that forked projects won't be able to enforce their license rights is, again, totally unrelated to the ruling. Forked projects will have a license that allows them to enforce their rights, because of the nature of the open source license they're using, which grants such rights. Pretending otherwise is pure folly. Honestly, the more I read this piece, the more I think it's someone who's trying to spread pro-Righthaven FUD.
by Mike Masnick
Tue, Jun 21st 2011 8:20am
from the no-standing-and-fair-use dept
First up, we have the question of standing -- which was what last week's big ruling was about. In that case, Judge Roger Hunt took apart Righthaven and Stephens Media's bogus claim that Righthaven ever actually owned one of the key rights granted by copyright law. As we've explained a few times, in order to be able to sue over copyright, you have to actually hold one of the specific rights listed in Section 106 of the copyright law. What's not allowed is the transferring of the "bare" right to sue. If you hold one of the enumerated rights, you can also take with it the right to sue over any infringement of that right. But without the rights, you're in trouble. This is the second judge that has found Righthaven in serious trouble over this issue.
As in the Hunt ruling, this ruling, by Judge Philip Pro, finds that it's quite clear from the nature of the agreement between Stephens and Righthaven, that the entire point of those agreements was to try to get around what the law says, and provide Righthaven with just the right to sue, and that's not allowed:
Here, the rights in the copyrighted Work retained by Stephens Media deprive Righthaven of everything except the right to pursue alleged infringers, a right that is still subject to Stephens Media’s oversight. Accordingly, Righthaven does not possess an exclusive right in the Work and therefore does not have standing to bring a suit for infringement.It seems pretty straightforward: if you don't have any of the specific rights under section 106, you don't have a right to sue. Done deal.
Separately, Judge Pro, like Judge Hunt, indicates that Righthaven and Stephens Media's attempt at the beginning of May to "clarify" their agreement fails to fix this basic problem. Righthaven has been insisting that the "Clarification" solved any questions of standing, but both of the judges seem to indicate otherwise.
Judge Pro then goes on to point out that even if Righthaven had the copyright and had standing, it would still lose, because of fair use. This is the second such case to find that, and once again highlights how for all the complaints about Righthaven, it's aggressive attempt to stretch copyright law has served to help create a wonderful body of case law that will be quite useful in the future. We've regularly seen people claim -- incorrectly -- that if you use the full work, there is no fair use. Yet, there are plenty of cases that prove this to be untrue, and now we've got another one, with the explanation clearly laid out. Judge Pro walks neatly through the four factors test:
- The Purpose and Character of the Use: Here, the judge finds the fact that Hoehn was using the article in order to create a discussion, and was doing so in a way entirely differently than the rightsholder, to lean towards a ruling of fair use:
It is undisputed that Hoehn did not and could not profit from posting the Work. Under Sony, noncommercial/nonprofit use is presumptively fair. Additionally, this factor focuses on the purpose or character of the new work. Here, Hoehn posted the Work as part of an online discussion. Hoehn avers he posted the Work to foster discussion in a specific interactive website forum regarding the recent budget shortfalls facing state governments. This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. There is no genuine issue of material fact that Hoehn’s noncommercial use of the Work for comment favors a finding that the use was fair.This is a great ruling for people who post works of others for the purpose of discussion.
- The Nature of the Copyrighted Work: This is a surprising, but welcome statement from Judge Pro. He notes that much of the article in question may not actually deserve any real copyright protection at all, as it just provides factual data, and such is not intended to be protected by copyright law.
The Work is an editorial originally published in the LVRJ. The Work is a combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely “creative work” in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within “the core of intended copyright protection.”This part of the ruling could certainly be useful in future cases, in noting that just because someone writes an article or creates some form of content, it shouldn't automatically get copyright on the entirety of the work, if not all of it reaches the level of creative input necessary to qualify for copyright. This is a point that is often lost in discussions of copyright.
- The Amount Used: This is the big question. This is why many people, falsely, assume that any time "all" of a work is being used, it cannot be fair use. However, as we've pointed out time and time again, that's simply not true, and this case reinforces that point. Here, Judge Pro notes that there's no dispute that all of the work was being used, but points out that this is just one factor in the four factor test, and that "wholesale copying does not preclude a finding of fair use." If the other sections weigh heavily towards fair use, that'll outweigh this point -- which is what happened in this case.
- The Effect Upon the Potential Market for the Work: In the end, for all the discussions of the four factors, it's this factor that quite frequently is the make-or-break factor in determining fair use, which intuitively makes sense. If the use hurts a market, people are generally wary of saying it's fair. If it doesn't hurt the market, it's much easier to claim it's fair. In this case, the court notes that there's no real impact on the market:
It is undisputed that Hoehn’s use of the Work is noncommercial. Challenges to noncommercial use require a showing that the particular use is harmful or negatively impacts the potential market for the copyrighted work. Id. Righthaven has not presented evidence raising a genuine issue of material fact that Hoehn’s use is harmful. Rather, Righthaven contends that because Hoehn replicated the entirety of the Work “[s]uch circumstances warrant the conclusion that [Hoehn’s] infringement has likely caused a substantial impairment on the potential market for the Work and that [Hoehn’s] infringing copy of the Work fulfilled the demand for the original.” (Resp. (Doc. #13) at 12-13.) Additionally, Righthaven argues that the market for the Work was impacted negatively because potential readers are able to read the Work on the Website and would have no reason to view the Work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011. Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm. Therefore, Righthaven has not presented evidence raising a genuine issue of material fact that the fourth factor favors a finding of fair use.I have to admit that I think this section could be much stronger against Righthaven, and am a bit disappointed that the judge didn't take the next step. It's important to note that this factor is supposed to be about the impact on the market for the copyright holder, and if we assume (as the court is doing in this case) that Righthaven is, in fact, the copyright holder, the argument on this factor looks even worse for Righthaven. That's because, based on Righthaven's situation and the limited rights it has, the only "market" it has control over is the market to sue. That's it's sole source of revenue for what bits of this copyright it might own (but probably doesn't). So, if we look at that, we see no impact whatsoever, because it's not as if the guy here (Hoehn) is going to compete with Righthaven in suing over the work.
by Mike Masnick
Thu, Jun 16th 2011 11:44am
from the digging-deeper dept
“As of today, there should be no question whether Righthaven has standing,” Gibson said.Classy guy.
Gibson noted that rights holders have three years to file a lawsuit from the time the infringement occurs — meaning the bloggers who settled might be sued again if their settlements or lawsuits are vacated.
“The statute of limitations,” he said, “is three years for copyright infringement.”
by Mike Masnick
Wed, Jun 15th 2011 2:33pm
from the things-keep-looking-worse dept
by Mike Masnick
Fri, May 20th 2011 11:42am
from the oops dept
I would imagine this comes after learning about the sham copyright assignments that were revealed in Nevada with Stephens Media. The lawsuits in Colorado aren't over Stephens Media content, but Media News content, and it's not clear if Media News also had a similar bogus copyright assignment trick going on, but it appears Judge Kane would like to find out. Righthaven has filed 57 cases in Colorado, with 22 of them being dismissed by Righthaven, meaning likely settlements in most of those (I believe at least one was dismissed because of the judge being skeptical). So, 35 cases are now on hold, but I imagine that the 20 or so people or companies who have settled may suddenly be regretting that rash decision.
by Mike Masnick
Mon, May 2nd 2011 2:59pm
from the people-suing-sony-should-pay-attention dept
But, of course, the problem with that is that it lessens the damage that can hit companies for being downright careless with your private data. However, this case in the Northern District of California, involving Alan Claridge suing RockYou, has gone differently so far (found via Michael Scott), because Claridge made a different kind of argument:
While many plaintiffs in data breach cases (unsuccessfully) allege harm suffered based on an increased risk of identity theft as well as inconvenience and out-of-pocket expenses associated with credit monitoring, Plaintiff employed a unique argument. As the court described, “Plaintiff generally alleges that defendant’s customers, including plaintiff, ‘pay’ for the products and services they ‘buy’ from defendant by providing their PII [personally identifiable information], and that the PII constitutes valuable property that is exchanged not only for defendant’s products and services, but also in exchange for defendant’s promise to employ commercially reasonable methods to safeguard the PII that is exchanged. As a result, defendant’s role in allegedly contributing to the breach of plaintiff’s PII caused plaintiff to lose the ‘value’ of their PII, in the form of their breached personal data.”The court is still skeptical of the argument, but is at least willing to hear things out. In other words, this is still very early, and it's at the district court level, so those who like this argument shouldn't get their hopes up yet. But, it's certainly making it a case worth watching.
According to the court, the alleged was enough for purposes of standing. “On balance, the court declines to hold at this juncture that, as a matter of law, plaintiff has failed to allege an injury in fact sufficient to support Article III standing . . . [T]he court finds plaintiff’s allegations of harm sufficient at this stage to allege a generalized injury in fact.”
And I'd be remiss in not mentioning that this is the kind of thing that we'll almost certainly be discussing at our upcoming dinner salon, since it very much taps into the theme of how companies need to act when their "customers" are also their "product," in terms of the information and data they collect...