Righthaven To Explain Why Reposting Isn't Fair Use

Ponca City, We love you writes "TechDirt reports that a judge has asked Righthaven to explain why a non-profit organization reposting an entire article isn't fair use. The case involves the Center for Intercultural Organizing of Portland, Oregon, which was sued by Righthaven in August after an entire 33-paragraph Review-Journal story about Las Vegas immigrants was posted on the center's website, crediting the Review-Journal. The nonprofit says it was founded by Portland-area immigrants and refugees to combat widespread anti-Muslim sentiment after 9/11 and it works to strengthen immigrant and refugee communities through education, civic engagement, organizing and mobilization and does not charge subscription fees or derive any income from its website. The interesting thing is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up, suggesting that the Nevada judges are being inundated with hundreds of Righthaven cases, and that Righthaven has already lost once in a case that was found to be fair use so judges may want to set a precedent to clear their dockets."

Comments

"Because we say so"

[Even on Slashdot FOE]

That's how all the *AA groups rationalize this, right?

Re:"Because we say so"

[Anonymous Coward]

They posted the full story on their own site, that's not remotely close to fair-use. They should have done an editorial selecting various points and link back to the original. This is a blatant copyright violation, just as much as providing direct download of copyrighted music and video.

Re:"Because we say so"

[An ominous Cow art]

Nice riposte.

Re:"Because we say so"

[paiute]

Previous poster is correct. It is not fair use, and Righthaven will win. The judge will award them all of the non-profit's profits for the next year.

Re:"Because we say so"

[morgan_greywolf]

While usually you'd be right, there are instances where reposting an entire article is considered fair use. For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

Re:"Because we say so"

[BBrown]

I think you've got the law right, but I don't think that'll help prove fair use here.

Taking an article that is used to generate advertising revenue and reposting it somewhere that the author will not receive any revenue from goes firmly against the "commercial value of the original work" prong of the fair use defense.

Consider the equivalent: let's say I run a "non-profit" website, hypothetically just a blog where I generate no income, and I repeatedly copy articles from behind the NY Times paywall onto my site. That's copyright infringement and is substantially depriving the NY Times of their income for the articles. I believe I would lose a fair use defense there. I think the situation is the same if I copied NY Times articles that were not behind the paywall because they would be able to show that they were losing ad revenue.

Re:"Because we say so"

[Anonymous Coward]

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case.

That's what the *AA type lobbyists want you to believe, but if you look at the copyright law, it includes Fair Use and says that Fair Use is a limitation on the scope of the copyright monopoly. I.e., a Fair Use is by definition not infringing.

Now you may find yourself on the receiving end of a copyright suit before a court clarifies what Fair Use means, but it is part of the law, same as the artificial monopoly that it limits.

Re:"Because we say so"

[david_thornley]

Really? I'd say that advertising exposure is of considerable importance to "fair use". One of the four main tests is whether it reduces the commercial value of the writing, and if I can read the whole article without any chance of seeing the ads that reduces the commercial value. Otherwise, copying anything off over-the-air television would be potentially fair use, since the only commercial value of (say) a football game is to expose the viewers to commercials.

Re:"Because we say so"

[mcgrew]

So, is this fair use or copyright infringement?

Re:"Because we say so"

[uniquename72]

if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

No, it's not. At all. See http://www.copyright.gov/fls/fl102.html. Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.

Re:"Because we say so"

[Anonymous Coward]

And I would say the advertising revenue is of no concern whatsoever in this case, since the party losing the ad revenue is the newspaper, but... (wait for it...) they aren't the ones suing.
Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.
Now, they could possibly resell the article to other newspapers, but they aren't, because that isn't their business model. Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.

This is nothing but the newspaper equivalent of the MPAA/RIAA lawsuits, where you smack someone for infringement, extort them for a settlement because they can't afford to defend themselves in court, then move on to the next person. One of their lawsuits has already been dismissed and found to be baseless, how many settlements have been made on similar cases, that might have been thrown out had the defendants had the money to fight in court?

Re:"Because we say so"

[blair1q]

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Handing out paper copies on the street in front of the charity HQ is probably that.

But posting it to the Internet where it can be retrieved by anyone instead of going to the copyright owner's site? That is not fair use.

Re:"Because we say so"

[blair1q]

For some "non-profits", that could be a considerable sum.

Re:"Because we say so"

[91degrees]

Interesting. So does Righthaven simply purchase a swathe of articles and hope that someone infringes, or do they wait for someone to infringe and then buy the article?

Either way, this does change things. If the former then their net profit from a typical article is negligible and the net loss is also extremely small considering the value they place on an article (this business model will not be viable if they pay a reasonable amount per article). If the latter then it seems bizarre to buy a property known to be damaged and then sue the person who damaged it, and this is essentially what they are doing.

Re:"Because we say so"

[TheLink]

The page in your link shows CEO salaries, not organization profits.

Re:"Because we say so"

[marcobat]

I'm not that sure, does the posting of the article to the non-profit website means that people that would have otherwise read it at the copyright owner site will go to the non-profit instead? Or does it mean that people that would have not been exposed to the article are going to be able to read it and learn something new? I think it would have been more polite to write one or two paragraphs about the article, post that in the non-profit site with a link to the full one, but i'm not sure that impolite is the same as breaking copyright law.

Re:"Because we say so"

[falsified]

The fact that it's an affirmative defense is what makes it so weird that the judge raised the issue. This would be like a judge yelling "ENTRAPMENT!!" during a trial.

In this case, it may not have been fair use, which is unfortunate because this Righthaven group sounds like a bunch of assholes. By posting the entire article, the Center for Intercultural Organizing may not have received any additional revenue, but they likely did deprive Righthaven of ad revenue, especially if CIO is ranked higher than Righthaven in search results. I'd try it myself but I can't find anywhere that actually mentions the name of the original article.

Re:"Because we say so"

[falsified]

If this is true, then why did the judge agree that Righthaven even has standing in this case? What you're saying sounds accurate, but if it were the entire story, then there wouldn't be a lawsuit. There has to be more to it than this. The original article makes it sound like the Review-Journal is backing Righthaven up.

The whole arrangement here sounds...weird. But that's why we have a legal system, I guess.

Re:"Because we say so"

[Anonymous Coward]

From my understanding, since it looks bad for the newspaper to be suing everyone for copying 3 lines from an article, they 'sell' the articles to Righthaven, in exchange for a license to use the article. This transfers the ownership of the copyright from the newspaper to Righthaven. Righthaven then sues any alleged infringers based on those copyrights. Since, however, they do not publish the work, and do not retain the ad revenue from said work, once the article is "Sold" to them, and they offer the license, their opportunity for revenue ceases to exist. They are not a publishing company, do not resell articles, and seem to exist only to sue people on behalf of the LVRJ (and a few others).

In this case, it isn't possible to "Link back to the copyright holder's website", since the article doesn't appear there, but at the site of one of their 'licensees'. That licensee MIGHT have claim to monetary damages stemming from loss of ad revenue, but even then its a hard thing to prove, since seeing an article, even a full one, on another site often leads people back to the source. Righthaven though, has no economic interest in the article itself, since they have already derived their money from its license.

Righthaven exists for the sole purpose of extorting money from alleged infringers, many of which cannot afford to defend themselves in court, and will pay a settlement, even if they believe they are right. The ad revenue lost to the paper from any article being copied elsewhere is very small, so recouping that ad revenue by halting infringers is not significant, and is obviously not their aim, since they could do just that with a simple C&D letter.

Re:"Because we say so"

[falsified]

I tried to slog through that. It certainly didn't convince me that I didn't need to seek out something else, so, fair use, I suppose. :)

Re:"Because we say so"

[Jiro]

Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.

I wouldn't think that matters. Wouldn't the payment they can get for licensing it back to the newspaper depend on the ad revenue it could get? If it can't get much ad revenue, they can't license it for much.

Of course the newspaper already paid them for *this particular* article, and they can't lose this preexisting payment, only future payments for future articles, but that would be like a situation where the newspaper did own the article and you tried to claim that the advertisers already paid them for the ads and they only lose revenue for future ads.

Re:"Because we say so"

[Anonymous Brave Guy]

Indeed. The summary seems to suggest that just because it's a non-profit organisation doing the reposting and they gave some sort of credit, they have carte blanche to completely ignore copyright. It's surprising that any judge would behave this way, so I'm thinking there is more to this story than we have heard so far.

Re:"Because we say so"

[tverbeek]

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.
Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

Saying that "fair use is not a law" is a strange statement, since it is codified in the Copyright Act of 1976. It spells out a four-part test, which includes "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", which this example flunks pretty badly.

Re:"Because we say so"

[tweak13]

Maybe the judge just thinks the lawyer that righthaven sent is an asshole, and he wants him to do as much work as possible. Judges basically get to do whatever they want in their own courtroom anyway. NPR had a story I heard yesterday where the judge refused to accept a motion to dismiss a case... from the prosecution. I didn't even know such a thing would be possible, but apparently judges really do have almost unlimited power in their little domains.

Re:"Because we say so"

[mcgrew]

Tl;dr?

Re:"Because we say so"

[KDR_11k]

The law does not specify the exact rules for fair use so it's up to the judges to decide what is and what isn't. This judge evidently thinks fair use can cover complete copies.

Re:"Because we say so"

[blair1q]

No, it isn't, which is why you can be both impolite and breaking copyright law at the same time.

Re:"Because we say so"

[mysidia]

They posted the full story on their own site, that's not remotely close to fair-use.

The amount of the work used is only one of the factors that can be used to help determine if a use of a work is fair use protected by the first amendment of the constitution.

There are cases where copying the entire work has been ruled to be fair use

Some other important factors are why was the copy made... and what is the impact on the market for the work?

If an article was made freely available online, then it is going to be hard to argue a repost was unfair just because it contained the whole work, if the work was not being sold in the first place

Re:"Because we say so"

[BillX]

So... the newspaper sold the copyright. How would they sue if they wanted to? Not that this takes anything from the possible fair-use argument, but it sounds like the only recourse of the newspaper itself would be to "encourage" Righthaven to sue (that is probably the exact arrangement) and if possible, feed in ad-revenue data in the hopes of bolstering the case.

Re:"Because we say so"

[ArbitraryDescriptor]

Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.

Under that model the value of the work is defined by their profit from a lawsuit. So if they win and get a settlement, the value is increased; thus, on appeal, they will lose. But now they expended all these legal fees, and have taken a loss. Their license on the article now has a negative value; thus, on a second appeal, they will win.

The question we need to ask is how many appeals will land this in the Supreme Court? If it's an odd number, Righthaven will spiral into bankruptcy. If it is an even number, Righthaven's business model will make them an unstoppable profit machine.

Re:"Because we say so"

[BillX]

I agree that in general posting a whole article shouldn't be fair use, so I was quite surprised at this judges expectation they show it wasn't fair use.

Why? If it were a murder trial and the prosecution's argument was "Well Your Honor, this guy's a murderer", I'm sure the judge would expect them to show their work. If anything, it sounds like the judge is encouraging the plaintiff to put together a good argument for infringement, rather than "well, you just have to trust us on this", which would be dismissed for failure to state a claim.

Re:"Because we say so"

[blair1q]

Really? You use GAAP in real-life situations? Really?

Re:"Because we say so"

[sumdumass]

At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.

That is of course if you ignore the ability of Righthaven to charge a premium for the content being licensed back because of the prevalence of unlicensed copies floating around in the same medium.

The argument can still be made. Although I agree, they are essentially being a copyright troll by design. However, this doesn't mean they don't have a claim, they just seem to be trolls in pursuing it.

Re:"Because we say so"

[sumdumass]

Because copyright law gives exclusive control over the copyright protected works to the copyright owner and it's licensees. It doesn't matter if they are making nothing from the copyright, it doesn't matter if the infringes is making nothing from it. there are a few fair use defenses that look at when the infringement was to further economical gain or not (commercial in nature), but the lack of that is not the sole determination for fair use.

Also, probably one of the hardest things about fair use is that it's a defense to an actual charge. This means that acase has to be started and accepted before any fair use defense can be initiated. Most smart companies and people, look at this before they file and attempt to guage how plausible it might be for the courts to agree with the defendant on fair use. It seems that RightHaven isn't one of these people.

The good thing about it is that the judge seems to want to limit this o side step a lot of the expense and determine if an infringement could have occurred before actually continuing the case.

Re:"Because we say so"

[sumdumass]

but it sounds like the only recourse of the newspaper itself would be to "encourage" Righthaven to sue

In this specific after the fact situations- yes. But if Righthaven didn't sue or take steps to stop infringements, then the newspaper could use that as leverage to negotiate lower rates.

In other words, if you are the only person with the story, it might be worth 10 times as much in order to keep revenue and content on your site. But if 20 other people have the same stuff, then the value of the story isn't near as much.

Re:"Because we say so"

[sumdumass]

It doesn't matter if they sell other copies or not.

Ask yourself this, I have two paintings, one of a common but almost indistinguishable copy of a Van Gogh and the other is an original Van Gogh. Ok, which one can I sell for more? The answer of course is the original. But if I had the only copy, I could get a premium for that too. Now suppose there are 2 million copies floating around, I can only get a little for the copy seeing how it's so common. Now I haven't sold it yet, but imagine how much you would give me for it- would it be more then the other guy who sells the exact same copy? Not likely.

SO if you know going in that there will be other copies because of past experiences, why would you pay as much for it? Now from the righthaven perspective, if there is going to be copies floating around as soon as it's published, then has the amount that could be charged for the content changed from when it was the only copy? And of course the answer to that is yes- it has changed regardless of any contracts that have locked the price in because of you were to renegotiate the contracts, the fact that copies are present would make the value less.

Again, there is no claim, other than "Copyright infringement for profit"

Please explain this a little more. Not being a profit or not being commercial in nature is not a qualifier for infringement or fair use. And yes, being a copyright troll is the same as being a patent troll, but that doesn't negate any laws concerning copyright. All it does is change how someone might feel about the actions.

Re:"Because we say so"

[Trepidity]

True, but in practice the 1st and 4th parts of the test are what most cases hinge on. Admittedly, that could be due to relatively few cases of whole-work reuse being litigated in the first place. It's relatively unusual, though, to see a case fail due solely to the 3rd factor, with the judge ruling that a particular use would've been fair, except for the defendant using too large a proportion of the work.

Re:"Because we say so"

[madmark1]

Not being a profit or not being commercial in nature is not a qualifier for infringement or fair use.

Absolutely right, further profit isn't a qualifier for infringement. Damage to the marketability of the original is. They have to prove 1) that the 'product' was damaged materially by the infringement, and 2) that the copying didn't qualify for one of the other fair use exemptions, THEN it qualifies as an infringement. Since they do not resell the articles, do not make ad revenue on web hits for the article, and receive the copyright from the newspaper in exchange for a license (but apparently no other monetary consideration, since the newspaper is working with Righthaven in this scheme), I would like to know how they can prove damage. If the one copying can prove they had no motive to profit, it didn't reduce profit of the original, and that they posted the article for educational reasons, to refute or criticize, to parody, or any of the other approved exemptions, then copying even the whole article is NOT an infringement. They had one of these suits thrown out already. In that case it was ruled an obvious case of fair use. Several cases have been settled out of court, how many of those were obvious cases of fair use, but not pursued because the accused could not afford to fight the case in court? That is what I mean by copyright infringement for profit. The only way Righthaven makes money is by winning lawsuits against violators, or getting them to settle to avoid a trial. That is their only purpose for existing. They do not create content, do not truly license content, or do anything else to bring in revenue except sue.

Re:"Because we say so"

[sumdumass]

Absolutely right, further profit isn't a qualifier for infringement.

Right, as profitability isn't in the scope of copyright's exclusive rights granted to the owner/author.

They have to prove 1) that the 'product' was damaged materially by the infringement, and 2) that the copying didn't qualify for one of the other fair use exemptions, THEN it qualifies as an infringement.

Well, no. They have to do that as part of setting their expectations for recovery of damages but not to show an infringement has occurred.

And the fair use thing, they don't have to show it wasn't fair use unless it's brought up by the accused as to why it's not infringement. Infringement is a specific legal term with a specific meaning.

Since they do not resell the articles, do not make ad revenue on web hits for the article, and receive the copyright from the newspaper in exchange for a license (but apparently no other monetary consideration, since the newspaper is working with Righthaven in this scheme), I would like to know how they can prove damage.

Damage can be shown as devaluing the service they offer if people are able to copy the works without restriction. Also, under the laws concerning theft by conversion, the copyright owner is entitled to a fee for the use of the property. And yes, copyright law makes copyright a piece of property.

But this is sort of pointless as there are statutory damages that can be used. You don't need to prove you have been damaged outside of one of the exclusive rights being infringed in order to sue for copyright violations/infringements.

If the one copying can prove they had no motive to profit, it didn't reduce profit of the original, and that they posted the article for educational reasons, to refute or criticize, to parody, or any of the other approved exemptions, then copying even the whole article is NOT an infringement.

Sure. But if you noticed, the burden is on the accused to show it has an exception not the copyright holder.

They had one of these suits thrown out already. In that case it was ruled an obvious case of fair use.

And I believe the accused also claimed fair use from the start. I'm not sure what the point is here. Fair use is a defense to infringement as specific delineations aren't actually spelled out in law, just examples that is supposed to be taken into consideration when determining if a use if fair use or not.

Several cases have been settled out of court, how many of those were obvious cases of fair use, but not pursued because the accused could not afford to fight the case in court?

We will never know.. This is because they were settled out of court. But it has no bearing on the jurisprudence of the case or this case in particular.

That is what I mean by copyright infringement for profit. The only way Righthaven makes money is by winning lawsuits against violators, or getting them to settle to avoid a trial. That is their only purpose for existing. They do not create content, do not truly license content, or do anything else to bring in revenue except sue.

OK, but this isn't illegal or anything. It just makes them a copyright troll in the same sense we have patent trolls. They use the crap for profit and that's about it.

Re:"Because we say so"

[SteeldrivingJon]

"For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use."

No.

A full-length reproduction claim of fair use is justifiable when the original material is very short, so there's no portion that can act as a sensible stand-alone quote.

33 paragraphs is not short. The non-profit could have quoted meaningful passages from those 33 paragraphs.

Non-commercial use may be considered, but isn't enough. Harvard is non-commercial, but they have loads of staff, power, and money. Should they expect to be able to reproduce full news articles on their website or in their promotional materials, without compensating the source? (If they *ask* they may receive permission to use the material. But they shouldn't assume that, as a non-profit, they can have their way with anything published anywhere.)

Re:"Because we say so"

[yuna49]

That's exactly the rationale for the decision in the "Betamax" case. Justice Stevens argued that fair use applied to the off-air recording of commercial programming because there was no obvious "harm," and because time-shifting could expand the size of a program's audience. The additional viewers would generate additional commercial revenues so copyright holders could increase the licensing fees for these programs.

The decision specifically excludes pay-television services like HBO because the economics of that part of the industry is different from over-the-air broadcasting.

Re:"Because we say so"

[morgan_greywolf]

It's fair use, even though you used the whole thing and changed only two words (explodes -> asplodes, dark -> dork)

You're not selling anything -- the use is non-commercial in nature. Does it hurt the commercial value of the original? The answer is clearly "no." If anything, your use of the lyrics increases the commercial value of the Pink Floyd tunes Brain Damage and Eclipse, thereby increasing sales of the album Dark Side of the Moon.

Re:"Because we say so"

[morgan_greywolf]

No, fragment you quoted is one-half. From your link:

4. The effect of the use upon the potential market for, or value of, the copyrighted work

And I said "does not hurt the commercial value of the original."

As the article you linked to says, consult an attorney. That's why I said "there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case." The "facts and circumstances of the case" would include "the nature and character of the use," "the "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and "the nature of the copyrighted work,"

The amount and substantiality isn't set in stone -- note that there are no specifics in the law itself. Like I said, it's an affirmative defense. In some cases, use of the entire work can legitimately be considered fair use.

Of course, you read "the use of the article is non-commercial" and stopped right there. I, on the other hand, did account for all four points, if you'd read my whole post.

Re:"Because we say so"

[volpe]

Correct. What he should have said is that fair use is not a right. That's why, when a content provider uses some sort of DRM that prevents you from making any copies whatsoever, it's not a "violation" of your fair use "rights".

Re:"Because we say so"

[uniquename72]

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Ridiculous that I need to quote this again, and point out -- again -- that it's a totally false statement.

Here's an illustration:
You and I have personal blogs, without advertising. I publish an article on mine. You re-publish that article on your blog and attribute it to me. If I want you to take that article down, I have every right to do so, and no judge on earth -- if I took it that far -- is going to rule in your favor. This has nothing to do with "commercial value"; it's not fair use by any measure.

I read your whole post, and nothing there makes that sentence anything other than INCORRECT. This isn't all that hard to understand. Why not just admit that the sentence I quoted is wrong, apologize to the /. community for your careless wording, and re-write your post to make it accurate? You were so close to begin with!

Re:"Because we say so"

[morgan_greywolf]

You and I have personal blogs, without advertising. I publish an article on mine. You re-publish that article on your blog and attribute it to me. If I want you to take that article down, I have every right to do so, and no judge on earth -- if I took it that far -- is going to rule in your favor. This has nothing to do with "commercial value"; it's not fair use by any measure.

First of all, you are incorrect: my blog does have advertising.

Secondly, even if what you stated were 100% correct, there is nothing to say what I post on my personal blog, or what you post on your personal blog, has no commercial value, advertising or no. Clearly that's not the case. We can reasonably expect to derive commercial value from our respective posts, even if such commercial value is only indirect.

The key difference here is that Righthaven doesn't have a single copy of the article in question posted anywhere on the Web. They didn't write it. The newspaper that did sold them the rights, and then licensed the article from Righthaven. Since Righthaven has already derived all expected economic value from the article in question, the article no longer has any commercial value to Righthaven whatsoever. The only party that does expect to derive further economic value from the article, the newspaper in question, is no longer the rights holder, so they have no standing to sue.

Hence, Righthaven's entire business model is flawed: what they clearly expect is to be able to derive further profits from nuisance lawsuits. The problem is that copyright law wasn't created for that reason. If Righthaven were more like ASCAP and BMI, who do derive additional revenues from their copyrighted works by licensing the material they hold the rights to, it'd be a different story. But Righthaven doesn't expect more revenue from anything but filing lawsuits. The judge is sending them a clear message: you cannot expect to abuse the court system to derive profits.

Your problem is that you are taking everything I say completely out of context.

Huh????

[Anonymous Coward]

Ok, I understand reposting excerpts, I understand reposting articles with the author's permission. But just reposting full articles while giving credit (somewhere) to the source is fair use?

I don't get it..... doesn't it just mean that people can copy entire websites willy-nilly and as long as they provide a buried link to the original source, its a-ok?

Re:Huh????

[Aladrin]

And don't make any money from it... Yeah, that seems to be what the judge is saying.

Amazing.

Maybe next the judge will say it's okay to distribute music as long as you don't make money, too.

Re:Huh????

[boarder8925]

Maybe next the judge will say it's okay to distribute music as long as you don't make money, too.

We can only hope.

Re:Huh????

[sabs]

1) post article you own copyright to anonymously on Slashdot
2) sue slashdot for copyright infringment
3) settle out of court
4) PROFIT

Re:Huh????

[Tr3vin]

Then maybe the judge will allow for the publishing of credit card / social security info. Free to use as long as you don't make money. Spend other people's money all you want, though. It is just data, after all.

Re:Huh????

[budgenator]

Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html

Re:Huh????

[SatanicPuppy]

If slashdot was stupid enough to reprint the full text of an article instead of simply linking to it, then they'd deserve to be sued.

Instead they post links to blogs that write crappy opinions off of original articles, which they then link at the bottom of their page (sometimes).

I honestly have no sympathy here. The internet works by hyperlinking. Anything else is an unfair attempt to drive traffic using someone elses content.

My view.

[OverlordQ]

Let's look:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The center isn't for-profit, so they're likely ok here.

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Also hard to claim fair use when it's the entire 33 paragraphs.

the effect of the use upon the potential market for or value of the copyrighted work.

Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).

Re:My view.

[Attila Dimedici]

What you are missing is that Righthaven is the plaintiff in this case and appears to be a copyright troll (that is, they have sued lots of people for copyright infringement, many times in cases that were blatantly fair use). The judge is basically saying, "I don't like you, you have wasted the court's time on numerous occassions, so I am going to force you to make the case that this use in some way damaged your revenue more than it enhanced it."

Re:My view.

[canajin56]

Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).

However, they are not being sued by the LVRJ, they are being sued by a puppet corporation that LVRJ sold the article to in exchange for a license to keep using it in the LVRJ. So, since their puppet corporation is not publishing it and is not making any money off of it except by suing, that will be a hard sell. If anything, since the only way this puppet corporation makes money is by being sold articles so it can attack, republishing LVRJ increases their revenues, so the effect is "positive" ;) Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. But since they aren't being sued by the LVRJ...

Re:My view.

[zzatz]

Do you really think that a local newspaper lost sales to an advocacy group in another city? People in Las Vegas chose to wait for a later copy of the article somewhere else, instead of the earlier version surrounded by other articles of local interest?

Context matters. It is possible that LVRJ lost no sales at all.

Re:My view.

[Nadaka]

... Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. ...

What the hell? If you have permission, you have permission and it isn't a copyright violation.

Re:My view.

[canajin56]

My subordinate clauses got tangled. "without permission, even with a citation".

Re:My view.

[mcgrew]

Odd, the local newspaper (Springfield State Journal-Register) uses a GPL license for stories that aren't copyrighted by the AP or other paid sources.

Re:My view.

[RobertM1968]

My subordinate clauses got tangled. (Not that I think it's right to republish entire articles) "without permission, even with a citation".

Fortunately the law is not based on what you think it right or wrong... ;-)

Re:My view.

[Anonymous Coward]

What you are missing is that Righthaven is the plaintiff

That shouldn't matter. Copying an entire article doesn't meet the criteria for fair-use. Doesn't matter if it was SCO, MS, Apple, or Righthaven.

Re:My view.

[GameMaster]

Ok, IANAL and I hate copyright trolls like this company but I'm going to have to play devil's advocate here for a bit. I don't see your point about the third claim. Sure, newpapers are for-profit but you still can't just copy a story from a newspaper into your computer and post it, in it's entirety, onto your blog and not claim that I'm not, potentially, costing them sales.

I understand that I can share the newpaper I purchased with other people but that only works so far. In reality, most people don't have a large enough social network for that to be practical on a scale that would impact the newpaper's sales significantly. Even if you did have enough friends who were interested in passing the same paper around, the physical nature of a newpaper would ensure that, eventually, it would break down and become unreadable from physical abuse. In the end, from a practical standpoint, people will have to, eventually, buy more copies of the newspaper (assuming it's an interesting enough article to attract attention but, if it weren't, you wouldn't be reading/sharing it in the first place)..

On the other hand, by placing the full paper on their website, this non-profit has, in a very practical way, eliminated most of the need of people looking to read that article to pay for a copy. I've seen this very thing work out myself. There have been many times when I'm looking for research papers on a specific topic. Often, I will find the name of a paper that matched what I'm looking for. Sometimes, that paper will be behind a pay-wall and sometimes it will have been posted online free of charge as well (usually in a slightly updated form by the professor who originally wrote it). If there's a free copy available, you can bet that I'm not going to shell out the money to the journal for access to the copy hidden behind the paywall. Bare in mind, while we aren't talking about something with the same potential readership as a newspaper article (since it's a specialized research paper), research journal articles cost much much more per copy when buying access through a pay-wall than even a whole copy of a newspaper. This means that while the potential number of sales they may have eliminated for that single research paper may be much lower than even what one person could do by sharing their morning paper, the actual amount of money they have cost the copyright holder may be much higher.

All of this is why, even though I hate copyright trolls and don't like to see non-profit groups dragged through the courts, I think the non-profit is, legally at least, in the wrong.

Re:My view.

[geekoid]

Its the context of all the points. Yeah, they used 100% but that doesn't in itself mean they violated copyright. Also, they copied the story, but not the entire paper. So it's a small % of the original source. yeah, that's thin.

Also, No one is NOT going to buy their newspaper because this article also appeared elsewhere. In fact, since it's a wider distribution, and the site the original, it's far more likely to drive people to the original source.

WTF is Righthaven

[slodan]

If you are like me, you thought, "What the fuck is Righthaven?"

Righthaven LLC [is] the Las Vegas “technology company” that has been filing copyright infringement lawsuits in ... Nevada against numerous unsuspecting website owners (almost always without notice) for copyright infringement of news articles originally published in the Las Vegas Review Journal.

Via http://www.righthavenlawsuits.com/.

Re:WTF is Righthaven

[KublaiKhan]

It's a parasite.

The company creates no value, and acts to remove value from the marketplace via litigation. While the ostensible purpose is to protect the interests of the LV Review-Journal, I question whether a newspaper--no matter how well or poorly circulated--would need an entire company to protect its intellectual property; last I checked, that was usually handled by the newspapers' legal department.

So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and all other similar companies that exist only to parasitize others' work were dissolved.

Re:WTF is Righthaven

[Aladrin]

Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

Re:WTF is Righthaven

[rakuen]

They could issue a C&D instead of immediately jumping to the lawsuit stage. Let the people know their use of the articles from the Las Vegas Review Journal is not appreciated, and give them a chance to remove it in good faith before pursuing litigation. It would be a nice thing to do, and would probably prevent a lot of the cases on the docket.

Of course, they're probably not doing this, which means you could make a decent conclusion that they're simply out for money.

Re:WTF is Righthaven

[Rary]

Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

You assume that the defendants are always guilty. Given that Righthaven has already lost one of these lawsuits because the act in question was a valid fair use situation, then yes, "unsuspecting" is applicable.

Re:WTF is Righthaven

[Anonymous Coward]

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

Re:WTF is Righthaven

[shentino]

But if they did that they wouldn't be able to exploit the baseless settlement gravy train.

Re:WTF is Righthaven

[mpe]

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

It sounds like the judge is saying something akin to "I can't see that you have any case at all. This is your last chance to convince me that you are not just wasting my (and the defendant's) time."

Re:WTF is Righthaven

[Pharmboy]

I thought we still had some notion of "Innocent til proven guilty" in this country

Only in criminal cases, not civil cases.

I am also a bit weary about jumping to the defense of the non-profit on this one. While they did give credit properly, they didn't include excerpts, they copied the entire article wholesale. My understanding of copyright and fair use seems to tell me that this is not actually "fair use" and actually is infringing, as it does prevent any need to go to the original author to read the whole thing, and *does* deprive the content creator the ability to profit from their work. That is the idea of copyright, granting an exclusive right to profit for a limit amount of time, in exchange for the content eventually becoming public domain. That the non-profit didn't make a profit off the work isn't meaningful, and the content creator was denied the opportunity to.

That said, it is the kind of infringing that warrants a "you need to remove the article as a whole, and only use excerpts, instead pointing to the original article" type of letter, not legal action. At some point, the courts need to throw these cases out simply because the court shouldn't be the first course of action, and should instead be the LAST RESORT, after other reasonable methods have been exhausted.

Re:WTF is Righthaven

[cornicefire]

Wrong. When Rightshaven gives money to a newspaper, the newspaper has money to pay reporters. That creates new content. While I agree that some newspapers or lawyers will just take the money to a vacation in Vegas-- oh wait these guys live there-- most newspapers will put the money into writing more content. The people who remove value are the ones who are causing litigation in the first place.

Re:WTF is Righthaven

[geekoid]

Unsuspecting doesn't mean unfair, it just means they were expecting to be sued.

Your strawman is fail.

Re:WTF is Righthaven

[ScrewMaster]

Since when has news been imaginary property?

When it shows up in a Slashdot summary, that's when.

Re:WTF is Righthaven

[Pharmboy]

Since when has news been imaginary property?

News isn't, which is why once source can get ideas and facts from another. Copying one source's interpretation and presentation of that news is property subject to copyright, understandably. We aren't even talking about paraphrasing here, we are talking about wholesale copying, which is obviously infringing. Again, there wasn't a need to sue when a letter would have served just fine, but it is still improper to copy every single word in someone else's work for your own website.

Re:WTF is Righthaven

[yuna49]

According to the link in the post above yours, Righthaven now has another client in Arkansas. Why doesn't it make sense for newspapers to contract with another specialized organization to protect their rights? There are obvious economies-of-scale here, especially if Righthaven continues to expand its client base.

You may not like them, but what they are doing makes sense economically.

So why not just provide a link?

[omnibit]

If the non-profit organization liked the story, why wouldn't they simply acknowledge Righthaven by way of summary and then link back to the source. Copying verbatim, even with acknowledgement, denies Righthaven hits to its website that otherwise would have been forthcoming.

What is fair use? IANAL but I would hazard a guess that entire reproductions without permission aren't fair.

Re:So why not just provide a link?

[lostmongoose]

Righthaven *doesn't publish anything* they only buy the articles from the authors/owners and then sue people for using them.

Re:So why not just provide a link?

[canajin56]

They can't link to Righthaven because Righthaven doesn't print the article. The Las Vegas Review Journal does. It's bad press when a newspaper sues a reader for reprinting a single quote from the paper, so they "sell" their publications rights to a puppet company they run, and that sues people. Yes, in this instance it's the entire article, but they are scattershotting lawsuits at any matches. They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they would sue Slashdot in a heartbeat ;)

Re:So why not just provide a link?

[Anonymous Coward]

They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they would sue Slashdot in a heartbeat ;)

Since when have Slashdot summaries been remotely accurate, let alone actually contain text from the article?

Re:So why not just provide a link?

[cornicefire]

This is a bogus argument. Rightshaven pays the creator and thus funds more reporting. If Rightshaven successfully sues the infringers, even more content is created.

This is black letter law

[Anonymous Coward]

I know this is slashdot and any attempt to enforce copyright law must be evil and wrong, but this isn't even a hard case, its more or less black letter law.

Fair use lets you, among other things, take representative excerpts of a larger work for scholarly or editorial purposes. Basically you're allowed to quote stuff in order to talk about it in a rational manner.

There's no standard under which you're allowed to copy an entire work and call it fair use.

Whether or not you make money as a result of your copying has no bearing on its legality, its only a function of damages. In other words, being a non profit doesn't mean that copyright law doesn't apply to you.

Re:This is black letter law

[Aladrin]

Actually, I think you'll find the summary and comments are mainly about how clueless the judge is about 'fair use' and that just mentioning it was amazing.

Re:This is black letter law

[Attila Dimedici]

Ordinarily, I would agree with you. However, Righthaven is a company that exists for the sole purpose of filing copyright lawsuits against anyone who uses any part of an article published by the Las Vegas Review Journal. Righthaven does not publish anything. As far as I can tell, they don't even sell the rights to publish anything. What you miss is that since the organization being sued is a non-profit, Righthaven must show how their publishing of the article reduces Righthaven's ability to make money from the article. Since Righthaven doesn't make money from the article (except from copyright infringement lawsuits), this will be a hard sell in court.

Re:This is black letter law

[falsified]

It kind of sounds like this judge is sick of seeing this plantiff in court and wants to do whatever he can to trip them up.

But unless there's some precedent out there that negates this, a lay reading of fair use makes it sound like this reprinting of the article is NOT fair use.

Re:This is black letter law

[RealGrouchy]

How is that hard to prove?

"Your honor, if this organization is allowed to republish this work without us successfully suing them, we will not get the money we would have from suing them!"

- RG>

Re:This is black letter law

[Attila Dimedici]

Unfortunately for Righthaven, the courts have generally interpreted that clause to mean interfering with a copyright holder's ability to make money that they would have made if the infringer hadn't copied their work

Re:This is black letter law

[Homburg]

It's not even close to being black letter law. The law says that "fair use" is permitted, and mentions various considerations that may be used to decide if a use is fair, but it doesn't give an exhaustive definition of fair use. The amount being copied is one factor mentioned in the law, but the issue is whether the amount being copied is essential for the proposed use; if you need to copy the whole thing to make use of it, and that use is fair use, the law permits the copying of the whole thing - the most obvious example would be videoing a program from the TV to watch later, which copies the whole thing, but is nonetheless fair use.

You're also wrong about the non-commercial nature of the copying being irrelevant. The law specifically mentions that one consideration in deciding if something is fair use is "whether such use is of a commercial nature or is for nonprofit educational purposes."

From the summary, this case doesn't sound like it is fair use; but the law by itself doesn't tell us this, it's a matter of precedent and interpretation.

Re:This is black letter law

[SteeldrivingJon]

" the organization being sued is a non-profit, Righthaven must show how their publishing of the article reduces Righthaven's ability to make money from the article."

Harvard, Yale, and the University of California system are all non-profits. Therefore, they can fill their libraries with bootleg copies of books and journals to their hearts' content.

I don't think it works that way.

Re:This is black letter law

[Attila Dimedici]

You missed the part of showing how the non-profit reduces the copyright holder's ability to make money from the copyrighted material. The reason that is difficult for Righthaven is because Righthaven doesn't make money from publishing, they make money from suing people.

Re:This is black letter law

[yuna49]

I thought that as well. Since fair use is an affirmative defense against claims of infringement, why it is Righthaven's responsibility to prepare a response to a hypothetical fair-use claim that wasn't even raised by the defendants?

Re:This is black letter law

[TheLink]

I wish something like this applied to patent trolls.

Re:My view. [4th test]

[Thagg]

There are four tests for fair use. The fourth one is "Is the use transformative in any way?" For example, a parody is usually seen as fair use, because it transforms the original.

Quoting for the purpose of refuting

[Compaqt]

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

Yet copyright "law" can be and is used to shut down debate.

Re:Quoting for the purpose of refuting

[Rary]

I'd like to see citations regarding this. It seems to me that as long as you're not quoting the work in its entirety, then the resulting work would be transformative and fair use. Is it really necessary to quote every single sentence in order to refute it?

Re:Quoting for the purpose of refuting

[Gravitron 5000]

If you refute with humour, than you have a fair chance at claiming that your work is parody protected (Sorry, I couldn't resist the bad pun)

Re:Quoting for the purpose of refuting

[Anonymous Coward]

The parent post claims that it's imposible to refute a work within the bound of copyright law. As evedenced by this statment.

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work.

(Slashdot, 11/24/2010, line 1-2)

The specific claim being made is that the best refutation would be a line by line rebuttal to a work quoted in its enteierty or near enough to violate copyright protection (line 3-5)

However I would argue that in that case you would quote the most important parts, and paraphraise the rest. Then you provide citations linking your quotes and paraphraised sections to the original. As A demonstration I have provided a quick example of the method in question in the form of this post. Since I have clearly quoted only a small portion of the original work, and have provided resonable citations I expect the resulting work of my own creation would pass for fair use were it to be questioned in court. This clearly contradicts the theis of the original post and inperticular the closing remark Which incidently is not itself substatioated in the original work:

Yet copyright "law" can be and is used to shut down debate

(line 5)

Re:Quoting for the purpose of refuting

[HikingStick]

Actually, my understanding of US copyright law (and no, IANAL) is that such use (dissecting whole chapters for commentary or discourse) would be considered fair use if not in a for-profit setting (e.g., publishing your commentary alongside the complete text of the target work). Fair use is not dead in the United States, but it is has moved from a general assumption to the status of requiring (especially at secondary schools, colleges, and universities) CYA policies, disclosure documents, and (imo) unnecessary licensing agreements with many content providers.

Taking the risk of going too far off on a tangent, I believe current trends in copyright law stem from the fact that corporations, rather than artists, control more and more copyrighted content. While corporations may be treated as legal persons under the law (granting them the rights of ownership, contract negotiation, and redress of grievances), they clearly lack something that is possible amongst true persons: the ability to take in stimuli and then re-present it in a transformed fashion. That, my friends, is why there is such a battle of ideologies surrounding copyright. Classical composers were known for listening to the earlier masters, or their peers, and then composing works in the style of the original artist. Similarly, some "stole" riffs and melodies directly from other works, but transformed them into their own unique creations. In our age, you have a group like Men at Work that lost a lawsuit for using a flute riff that paralleled the tune used in association with the song/nursery rhyme "Kookaburra", written and copyrighted in 1932, and renrewed in 1989 (by Larrikin Music). Current corporate structures and legal systems do not see such use as valid and, unfortunatly, that directly impedes the expansion and development of other creative output. While my example focused on music, the same can be said for most any media type: just think of all the buddy comedies or action stories churned out by Hollywood since that genre was developed. Yet, for some reason, those studios did not waste their time trying to shut down those smililar stories, even if they contained segments that paralleled the original, because they realized that the complete work is what warranted copyright protection, not the concepts or themes. Isn't a riff nothing more than a musical theme?

Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.

Re:Quoting for the purpose of refuting

[blair1q]

Is it really necessary to quote every single sentence in order to refute it?

Only in an academic sense. Generally one picks out the most egregious portions and refutes those. Then one gets accused of hiding from the facts by taking quotes out of context. Then one slings mud, then one ducks mud slung.

You know. It's like the Internet.

Re:Quoting for the purpose of refuting

[Hork_Monkey]

He can't provide evidence of it because that would be a copyright violation.

Re:Quoting for the purpose of refuting

[Attila Dimedici]

Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.

Actually, the evidence available suggests that exactly that is the case. The woman who wrote "Kookabura" was still alive (and still held copyright)when the Men at Work song came out. Before she died she gave the copyright to a nonprofit organization (I don't remember the name of te organization--something like the Australian National Library). That organization sold the rights to the song as part of a fund raiser.

Re:Quoting for the purpose of refuting

[Minwee]

You can't quote to refute a work.

I'm going to have to ask for some corroboration from a legal authority on this statement, as I find it difficult to reconcile with my understanding of copyright law.

Or, in simpler words, Torts or Get The Frack Out.

Re:Quoting for the purpose of refuting

[MarkGriz]

"Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar."

Hopefully we are allowed to use logical OR, rather than exclusive OR

Re:Quoting for the purpose of refuting

[guyminuslife]

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

Yes you can.

The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

No, it isn't.

Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

Hardly.

Yet copyright "law" can be and is used to shut down debate.

Not really.

Re:Quoting for the purpose of refuting

[BillX]

"Entirety" is only one of four factors used in deciding whether a use of a copyrighted work is fair use. Some other biggies are whether it is transformative (yes! You've turned a pro-x argument into an anti-x argument, and added plenty of original material), "purpose and character" of your use (whether the goal of your use is to serve a societal purpose or just make money), the nature of the original work (in general, the more 'creative' rather than functional/factual the work is, the stronger its protection), and whether the other party directly loses profit from the use.

Re:Fuck Writers

[boarder8925]

Well, your comment definitely sounds appropriate for digg, though I think it'd fit better on YouTube.

Re:My view. [4th test]

[OakDragon]

They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!

Means of dissolution

[zooblethorpe]

So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and all other similar companies that exist only to parasitize others' work were dissolved.

Preferably using a strong acid.

(Only partly joking.)

Cheers,

Re:Means of dissolution

[Monkeedude1212]

That won't work. It's got concentrated acid for blood. A good defense mechanism, you don't dare kill it.

Re:Means of dissolution

[Skidborg]

So simply dunk it in baking soda and watch the fireworks.

5 word summary:

[hey!]

"The Boy Who Cried Wolf"

Re:5 word summary:

[Minwee]

"The Boy Who Cried Wolf"

Or, if you prefer the story in a more visual form, Wolf!.

(NSFW)

Issue with linking to an ever-changing site...

[eepok]

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

It reminds of the the "out-of-print" book issue. Writer Bob writes a book. It's published and distributed. Demand for the book wanes, Bob dies, and the publisher pulps surplus stock. If someone wants to buy the book, s/he has to dig through used book stores or the like and, if the book is ever found, pay a premium for a book that is no longer in print. The reader just wants the content, not a collector's item... and yet it's not exactly legal to acquire the content without purchasing the rights from the publisher.

Re:Issue with linking to an ever-changing site...

[blair1q]

That's the problem. The solution is to write your own article, or to maintain your links.

Re:Issue with linking to an ever-changing site...

[Todd Knarr]

The problem is you can't maintain links. The material the link points to can change or be removed entirely, which creates a problem. If I criticize someone's positions or evidence in their article, they can change the article and smear me for having lied about what they said and I can't prove a thing. The only way I can prove they said what I say they said is to make my own copy of their article, one that they can't change, and serve it up off my own servers alongside my commentary on it. And I may need to show the entirety as a defense against claims that I'm cherry-picking statements of theirs and taking them out of context. My only defense against that is to show enough of the article to show that no I'm not taking isolated statements out of context, and that may well be the entirety of the article.

Re:Issue with linking to an ever-changing site...

[PeterBrett]

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

That's the problem. The solution is to write your own article, or to maintain your links.

That's not a "solution", that's a crappy and unnecessarily labour-intensive workaround. Idiocy like this is why most of the 20th century's literary, musical and cinematographic legacy is disappearing down the toilet of history -- fear of brokenly restrictive copyright law makes people unwilling and, indeed, unable to properly preserve cultural artefacts by copying and sharing them after the original creators and/or publishers have died and/or lost interest in the works.

The real solution is to fix bloody copyright.

Re:Issue with linking to an ever-changing site...

[pz]

That's the problem. The solution is to write your own article, or to maintain your links.

Or, purchase rights to the work. The work is copyrighted, and you want to copy it. It's really quite simple. The owner will, very likely, sell you rights, at least if they are a publishing house.

I do that all the time for images that I use in my business-related presentations. For most copyrighted work that is owned by a company of some sort, it is relatively straightforward to approach their business development people and strike a deal. Usually this is as easy as finding the right page on their web site, making a selection of content and rights levels, and typing in your credit card number. At the worst, it's making a single phone call. No, it isn't free, and no, I don't think it should be. But most copyrighted work isn't the Obama HOPE portrait or a Pulitzer winning investigative essay, and so the prices are reasonable, at least in my experience.

Re:Issue with linking to an ever-changing site...

[sabt-pestnu]

and yet it's not exactly legal to acquire the content without purchasing the rights from the copyright holder.

Clarified that for you. Authors have been retaining copyright more and more often these last 30 years.

Publishers are given rights to copy and distribute. If they are given exclusive rights to copy and distribute, and the (copyright holder) lets you copy/distribute, the publisher then has a beef with the copyright holder, not you.

Re:Issue with linking to an ever-changing site...

[el3mentary]

You could always host a full copy locally just in case the link does die/the article is purged for some reason and only publish it in that case. Loss of revenue would be invalid in that case as they wouldn't be generating of course this only works in the case of NPO's

Re:Issue with linking to an ever-changing site...

[blair1q]

If you're criticizing someone, do proper fair-use excerpting.

Then, if they make the original document go away, criticize them for that.

But don't give them legal ammo by stealing their work and wrapping it in nominal "criticism" just to pretend it's fair use.

Re:Issue with linking to an ever-changing site...

[blair1q]

Copyright doesn't care about loss of actual revenue, only loss of potential revenue, but even in cases of zero potential revenue copyright may still apply.

I have a right to keep copies of my work from being printed as well as to print them, whether or not my work is available to the public.

If I choose to release my work for a few months every decade, then that's my choice, and anyone making copies of it without my permission in the interval is in violation of the law.

Re:Issue with linking to an ever-changing site...

[blair1q]

Bullshit.

You can make copies for your personal use. Who's to stop you? Who's to know?

Personal use could include waiting out the copyright.

But really, it's not your right to steal something just because you think it's historical. It belongs to the person it belongs to and not to you.

If you want to preserve it before it's in the public domain, buy it from the person who owns it. If it's at all valuable to you, you'll pay. And that's the point.

Re:Issue with linking to an ever-changing site...

[PeterBrett]

You can make copies for your personal use.

Not in this country, you can't. Also, this assumes that you have access to a copy. Example: there's a book I read when I was a young teenager. Our family copy was lost sometime in the early 2000s. I want to read it again. It went out of print in the 1970s. Copies are like gold dust, because it was printed as a rather shitty mass market paperback, and they tend to self-destruct within about 50 years anyway (the glue perishes and the paper oxidises). If it had entered the public domain within a reasonable time period after publication, there would be a legal copy somewhere on the Internet.

But really, it's not your right to steal something just because you think it's historical. It belongs to the person it belongs to and not to you.

I thought we were talking about copyright infringement, not stealing. There is a difference, you know.

If you want to preserve it before it's in the public domain, buy it from the person who owns it. If it's at all valuable to you, you'll pay. And that's the point.

You make several poor assumptions.

Firstly, you assume that you can track down the current copyright holder. For the majority of works currently under copyright, and particularly those created between 1930 and 1980, this will be difficult if not impossible -- a frequent occurrence is that the rights have reverted from publisher to original creator, but the original creator has died, it isn't possible to locate his or her inheritors, and/or the transference of intellectual property rights was not clearly expressed in the will, meaning that the current copyright holder is [undefined]. And since the work is copyrighted, but you can't get a license from [undefined], you're screwed.

Secondly, you assume that the copyright holder (I take it this is who you mean when you say "the person who owns it") has any interest in selling the rights and/or licensing them. There is a significant expense to be incurred by the copyright holder, in terms of time and effort as well as money, in setting up the required legal instruments, especially if they haven't done this kind of thing before. They may well decide that it's not worth the hassle, in which case you're screwed.

Thirdly, you assume that, having been located and being interested in licensing the work or acquiring the copyrights, the copyright holder is willing to charge a reasonable amount. In one well-documented case, a media corporation sought to charge an amateur film-maker several thousand USD per item for use in their film. The songs in question were each around three minutes long, and were recorded in the early 1930s. Note that this is merely for a license. If you are the hypothetical person interested in preserving significant works for posterity, this level of fees will not allow you to preserve very many, if any.

Consider an history postgraduate student living in 2100, and wishing to write his or her doctoral thesis on, "Journalistic effectiveness of 'blogger journalism' in the decade 2000 to 2010." Assuming that the average blogger during this last decade was between 20 and 30, and that they live to at least what is currently a statistically average age. In that case, the majority of blog-based source material for this student will still be in copyright, but given the ephemeral nature of most web hosting providers, the majority of that source material will no longer be available in its original location, especially given that dead peoples' websites tend to suffer from natural decay and attrition. Furthermore, the student will wish to consult contemporaneous articles and broadcasts in the traditional media. Few newspapers, radio stations or television channels are as meticulous about maintaining their archives as the BBC or the Times are.

The majority of the material of interest to this hypothetical student will not survive until 2100 unless people now make, and look after, copies

Re:Issue with linking to an ever-changing site...

[blair1q]

Three words:

Library. Of. Congress. If someone wants their work preserved, they'll submit it to the Copyright Office and it will end up there.

The rest of your issues are epistemological problems, not relevant to copyright.

The fact that you can't keep track of a book you once owned will never invalidate the rights of its author.

Re:Issue with linking to an ever-changing site...

[PeterBrett]

Library. Of. Congress. If someone wants their work preserved, they'll submit it to the Copyright Office and it will end up there.

I'll read that as "legal deposit library". When legal deposit libraries were originally established, only works which had had copies deposited were afforded the protection of copyright. This was great, because it meant that if you couldn't make your own copy of something, you knew there was a place you'd definitely be able to track it down in the future. Unfortunately, when "copyrighted by default" became the law, we ended up in a situation whereby you have to assume that everything was copyrighted, but also that it haven't been deposited somewhere for safekeeping.

Not to mention that, on average, whether "someone wants their work preserved" is pretty irrelevant to whether it's actually worth preserving.

The rest of your issues are epistemological problems, not relevant to copyright.

Don't brush away the issues I've highlighted as "not relevant to copyright" in such a cavalier manner. The loss of knowledge and cultural works into the "20th century black hole" (as Pr. Jame Boyle of the Duke University Center for the Study of the Public Domain terms it) is a real problem that's affecting people right now -- and it's caused primarily by excessive copyright duration, and to a lesser extent by excessively restrictive copyright limitations.

The fact that you can't keep track of a book you once owned will never invalidate the rights of its author.

Copyright protection is not a right; it's a privilege, and it is one that exists to promote and enrich the public domain. Try reading your precious (and too-frequently-ignored) Constitution.

Re:Issue with linking to an ever-changing site...

[blair1q]

Copyright is a right.

Duration of copyright does not prevent preservation of existing copies that are in public hands. If the copyright holder has the only copy and does not care to preserve it, then offer him money for it.

When you reach the price he likes, you can have your copy of his property. Until then, you have no right to it, even if it's in danger of vanishing.

The right to copy is also the right to erase a copy, even if it's the only copy.

Re:My view. [4th test]

[Foobar of Borg]

They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!

"When I downloaded those files, I didn't expect a kind of Spanish Inquisition." - Thomas-Rasset

Mod parent up.

[TheLink]

More people copying the articles could actually increase Righthaven's revenue :).

Righthaven makes more money if:
1) More people copied LVRJ articles
2) Righthaven successfully sues them (e.g. judge allows them to win).

Re:I disagree, sorry

[wiredlogic]

Who came up with this magic 10%? The law says "substantial portions". It's up to a judge to decide what that mean on a case by case basis.

You CAN quote to refute a work

[Infonaut]

"You can't quote to refute a work."

Where did you get that idea? Comment and Criticism is at the heart of Fair Use Doctrine.

As for the most effective means of refutation, line by line or paragraph-by-paragraph refutation of a work of any length might be effective in the abstract, but I doubt most people would read it. In practice it is more effective to create a general framework of critique, and use selective quotes to drive your point home. This is likely why there hasn't been a hue and cry about the stifling inability in our culture to engage in argument.

I also don't understand why you put law in quotes. It is law, whether you understand it or not.

"To clear their docket" (c)

[roguegramma]

Strange that a judge has to decide the merits of a case based on the length of their queue.

I guess it would make sense to dismiss the case for lack of enough public interest, but to set a precedent?

In my opinion, reposting is violating the rights of the copyright owner to pull the story(or other content, programs come to mind) from their website, for example to charge money for it.

I think reposting without a financial interest might still constitute fair use, as long as either the copyright owner is still publishing the information for free, or as long as you comply with requests from the copyright owner to remove the content from your site. But I guess that's too much of a commonsense position for a court.

Re:"To clear their docket" (c)

[aiht]

Strange that a judge has to decide the merits of a case based on the length of their queue.

I think it's not so much "the length of their queue" as "how much of their queue is made up of the same type of lawsuits from the same known copyright troll".
Note that he's not throwing the case out just because they have trolled before; that would be blatantly unfair.
He's just asking them to convince him that this case is not a troll case.

Debates about Fair Use...

[Errandboy of Doom]

This case raises two really interesting undecided questions in fair use which I've heard batted around.

1.

Some friends of mine who are media law defense attorneys always insist that Fair Use is not a "defense," because the phrasing surrounding fair use is always "a fair use IS NOT infringement" rather than the typical language of affirmative defenses, which would say, "an infringement is PERMITTED(/not actionable/shall not result in damages) given fair use." This means that it is the plaintiff's obligation to establish the use was not fair as a very element of the underlying claim. In turn, a judge can independently find this element lacking and deny a copyright claim without the defense ever being raised.

The media law Plaintiff's attorneys I know all disagree, of course, citing common practice, and the fact no judge would actually do that. Well, here we are. And the underlying theory that "fair use is not a defense", while a bit unorthodox, seems to bear at least basic textual scrutiny. I'm not saying it's decided, but there's a prima facie case to be made. I never thought it would be put to the test, but hopefully we get an appeal on this and a judge up the chain explicitly says, "Yes, judges can do this, because a fair use is never an infringement," or "No, this must be raised as a defense."

2.

Some* have noted that the common law fair use considerations are clearly not meant as an exhaustive list in Folsom v. Marsh. As codified in the statute, it appears like an exhaustive list, but the existence of 17 USC 107 does not preclude the possibility of a common law principle which reaches even farther in categorizing some uses as fair. 17 USC 107 does not explicitly preempt the further development of Folsom v. Marsh. In other words, the judge could find that any use by a non-profit organization is fair, on some completely novel grounds, like non-profits promote the public good so we will give them a pass. (I don't think such a broad ruling is likely, I'm just illustrating how a new type of fair use could be created.)

*Specifically, I'm lifting this from some comments Fred von Lohmann made in Kansas City a few years back. Apologies if I misrepresented his position. Also note that I'm not even sure he's committed to this, he may have just been tossing it out as an interesting idea.

Re:Debates about Fair Use...

[sproot]

I'm fairly certain you missed

IANAL, and don't know wtf I'm talking about

from there somewhere.

tl;don't have to read

[TheoMurpse]

I'm just going to skip to the bottom of the comments and assume there were 27 car analogies, 183 mistaken uses of "patent" or "trademark" instead of "copyright," accusations of "copyright troll," and a not uncommon call for copyright to be abolished.

Re:tl;don't have to read

[madmark1]

And the ritual is now complete, since in addition to all of the above, we have added the "Guy who hasn't read any of what is going on, recites some statistics he thinks are humorous that dismiss everything, and adds nothing to the conversation or, well, the world."

Re:tl;don't have to read

[TheoMurpse]

Word to ya mothah.

Copyright law as a threat of violence

[Compaqt]

>I also don't understand why you put law in quotes.

To contrast two usage of the word "law": one, rules held sacred by society and thought to have been framed on first moral principles for the betterment of all, and two, a use of violence or the threat of violence for private gain, as a manifestation of rent-seeking behavior, and brought about by bribery, whether legalized or not.

Re:Copyright law as a threat of violence

[Infonaut]

brought about by bribery

So the bottom line is that you feel current copyright law can only be the result of bribery? I agree that current copyright law has significant problems, but the fact that Big Media has a powerful lobby does not mean bribery is necessarily involved. You can accuse me of being naive, but we are talking about the law, and the law does not support accusations that are without proof.

A better question

[TRRosen]

Is a news story even copyrightable? an Opinion piece is of course. and so are works of fiction but a news story is only a collection and presentation of facts. Does the text of a news story really contain enough artistic content to be considered copyrightable? I have to say not much I've read in any newspaper lately has any artistic content.

One can also pose the question could anyone make any effective profit from an old news article. You'd have to be able to get thousands if not tens of thousands of hits to an article to show any return at all from advertising. And as far as I know only the music and film industry has been granted the ability to sue for more than actual damages.