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!)."

Comments

A limited reading

[Sonny Yatsen]

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.

Re:A limited reading

[Sonny Yatsen]

It's an interesting issue to bring up. Because of technology advancing so quickly, these issues are still yet unresolved. You gotta remember, a lot of judges aren't tech-savvy and there's a gap between the technological knowledge of a court and the issues that pop up nowadays. (For instance, a few years ago, no websites would have links to share on social networking sites like facebook or twitter.) Case in point, judicial districts still use antiquated technology to function. The New York Judicial Courts, for instance, still mandate the use of WordPerfect as its preferred format.

As far as the difference between sharing the article and sharing a link to the article, I think the most appropriate slashdot appropriate analogy would be the difference between a memory location and a pointer to a memory location.

Re:Reform is needed.

[mcgrew]

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.

Re:Um...

[Spad]

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.

Sudden Outbreak of Common Sense

[koterica]

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.

An insult to dogs

[Mr. Underbridge]

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

Re:Um...

[Anonymous Coward]

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.