Slashdot Mirror
Newspaper May Have Given Implicit License To Copy
An anonymous reader writes "Following up on the story of Righthaven, the 'copyright troll' that is working with the Las Vegas Journal Review to sue lots of websites (including one of Nevada's Senate candidates) for reposting articles from the LVRJ, a judge in one of the cases appears to be quite sympathetic to the argument that the LVRJ offered an 'implied license' to copy by not just putting their content online for free, but including tools on every story that say 'share this' with links to various sharing services (including one tool to 'share' via Slashdot!)."
Their articles need posting to a few hundred websites more... that way they can become partners with the **AA gang in the mass-mail lawsuits business. It's all part of a plan for a DOS attack on the justice system.
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I just want to note that the Righthaven v. Klerks decision linked to in the article should actually be read on fairly narrow grounds. The whole issue of Righthaven is whether to vacate a default judgment entered against Righthaven. In order to vacate the default judgment, the defendant had to show that they 1) weren't culpable in defaulting, 2) they had a meritorious defense to the original case, and 3) not vacating the default judgment will prejudice the defendant.
The whole part about the implicit license to copy and fair use was applied only to the question of whether Righthaven had a meritorious defense. However, it does not mean that the defense is a winning defense, merely that it wouldn't be laughed out of court if they asserted it. I don't think this really offers that much precedent beyond the narrow scope of the motion.
In any case, while I disagree with Righthaven (and I agree with the judge on the matter of fair use), something doesn't exactly sit right with me with the Judge's argument that the newspaper gave an implied consent to copy the newspaper. Part of the reasoning is that the newspaper permitted the user to "'right-click' and copy the article". This seems like a dog of an argument to me. Practically all websites allow users to right click (except for Dr. Ann de Wees Allen) and copy the content from their webpages - that doesn't seem like it means that everything is offered on the web with an implied license to copy. Rather, the fact that the newspaper had links to share a link to the content on facebook or twitter or whatever - and thus should only really be read to have given implied consent to link, not to copy.
My postings are informational and does not constitute legal advice. Act on it at your risk.
There are two kinds of copyright troll: the ones who abuse copyright itself, like filing takedown notices on websites that aren't infringing copyright but the troll wants closed for other reasons (like it said something bad about them), and the industry shills who come to slashdot equating copyright infringemet to theft and terrorism with their "think of the artists" and "it's MY property" twisted logic.
Sometimes you have to fight the trolls.
Free Martian Whores!
It is, as they always say in the lawsuits against P2P operators, all about how you advertise your services.
If you say "Here is my article, come read it" then you're not implying anything beyond that, but if you say "Here is my article, come read it and share it with all your friends" then the implication is that you're happy for people to take that article and spread it around.
Now there may be an issue of attribution, but that's an entirely separate issue from claiming that people are violating your copyrights by doing what you invited them to do.
As others have explained above, this judgment isn't so much a precedent as it is a judge saying that the argument *might* work. However- it shows remarkable reasonableness on the part of the judge. After all, if I put a fruit bowl on a table with a note that said "Take one and have a nice day!", I could hardly turn around and sue you for banana-theft.
something doesn't exactly sit right with me with the Judge's argument that the newspaper gave an implied consent to copy the newspaper. Part of the reasoning is that the newspaper permitted the user to "'right-click' and copy the article". This seems like a dog of an argument to me.
As a dog owner, I take umbrage with that statement. It's a terrible argument on a few grounds, including those you mention as well as:
1) The right click thing is ludicrous, as you state and more. The site doesn't provide right-click functionality, the browser does. The site in question would have had to take extreme measures (like the de Wees Allen gambit) to prevent it, which never ends up working anyway. Besides, there are fair uses for newspaper articles (which would presumably be killed by effective copy protection) - just not necessarily this one.
2) Didn't we have this whole link vs. content thing before with sites that link to pirated works, CSS keys, things like that? Aren't "we" on the side that sharing a link is completely different than providing content? So they should be able to provide a *link* without that being interpreted as providing the content, right?
3) I really, really don't like the "it was freely (as in beer) available, so now there's an implicit license. Sounds a lot like the whole 'GPL software is in the public domain
How different is this from the free newspapers I see around the city that tries to propagate itself through free distribution? Just because it's passed around as much as possible, it doesn't necessarily mean you (the end-user) can take the articles and publish it in a book form compilation and sell it.
As a photographer, I pass out postcards and other marketing materials. It doesn't mean the *potential* art buyers can use my image for their designs and advertising projects. I am the copyright holder.
What about the software company that distributes shareware versions of their program - are they free to be modified and re-sold at profit? Or should I simply cripple my images with a watermark? Should the news site install a paywall to tone down this "implicitiveness?"
I think the problem is not necessarily spreading the content, per se, but who's hosting. In this age of pay-per-click advertising, if the user is not visiting the original online publication with ads (News Site), but instead going to another domain with copied content (Copy Site), the Copy Site is generating revenue at the cost of News Site (editors, reporters, photographers ain't free).
I would hinge this case as 'fair use' based on Copy Site's amount of articles copied; how much is copied (whole articles or quotes); and if any revenue is generated through ads or other financial incentive.
I was wondering about the "copy this article" claim, so I went to the LVJ website. I went to the first news article which was
http://www.lvrj.com/news/bill-scott-anticipates-attempt-to-clear-police-in-costco-slaying--trash-his-dead-son-s-name-103510074.html
There you can see, at the bottom of the article, a whole slew of "share on some other website" links, including Digg and Slashdot. The last icon is a heart, which I think is a way of adding the article to some kind of personal LVJ list of favorite articles.
I don't see a link making it trivial to copy the text of the article, though of course it's no harder than selecting it and copying it. So, if that's right, I think that would be a hindrance to this defense, because the "implied license" would be to share a link to the article on aggregation sites which exist for the purpose of sharing links, not full articles. Moreover, the implied license would probably only apply to the listed sites.
Also, there are two separate conspicuous copyright notices on the page. Of course, I can't say whether those notices were present in the past at the time of the alleged infringement.
Disclaimers:
...their providing of "tools" on their website to help facilitate sharing content even goes so far as to constitute the granting explicit permission/license to copy.
Hmmm. I don't know. That sounds like an ideological over-reaction to the current ideological over-reaction. I would prefer a balance, because I understand the arguments at both ends of this spectrum, and sympathize with them both.
And the counter to that is that the website author grants an implied license to copy the work for display on your machine so you can read it, but not a blanket license to copy for anything you want to do with it. In this particular case, however, the author(s) of the website placed "share this" links to /. and others, thus implying that they wanted to make the pages available to all for copying.
-nB
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In what world do you live?
Are you not aware that the high-profile RIAA/MPAA cases are a tiny fraction of the copyright litigation that occurs? Have you failed to notice that even in those cases, while the industry groups are pushing for outrageous outcomes, the trend has been toward moderation (or, one might say, "common sense") for a long time now?
It is not shocking news that the court is hearing this argument, and it will not be shocking news if this argument prevails.
Just wait for lawyers to start patenting their particular model of "lawyering" and then the fun REALLY starts. :p
You mean like a trial lawyer patenting a method for making jury selections? Sorry, it's already happened, and I haven't seen any *fun* resulting...
Don't tell me to get a life. I had one once. It sucked.
Not quite - there's different kinds of 'copying'. Putting a button on your site does give implicit permission to copy that portion of the story provided by the button - it does not give implicit permission to cut-and-paste the entire story. (Usually such buttons only provide a teaser and a link, and the LVJR's buttons adhere to this custom.) I'm hoping the judge recognizes the difference.
Fair use plays into this as well. Unless it falls under one of the exemptions, then by copying the entire article to your website (whether or not you provide a link) you've violated the LVJR's copyrights.
You own it, until 14 years pass or you die. Within that period, you can license it as you see fit. However, if you license it to MegaCorp for the next 10 years, then slide under a bus the following day, the copyright goes *piff* and the work becomes public property immediately. No permanent licensing, no passing it along to your heirs.
The "inalienable" part tethers the copyright to the blood-and-guts person who did the creating. Copyright is supposed to be an incentive for folks to create new things, no to be a welfare program for corporate interests.