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Righthaven Copyright Lawsuit Backfires

timothy posted more than 3 years ago | from the almost-like-there's-a-fair-use-doctrine dept.

The Courts 88

Hugh Pickens writes "Steve Green reports in the Las Vegas Sun that US District Judge James Mahan has ruled that the Center for Intercultural Organizing, an Oregon nonprofit, did not infringe on copyrights when it posted an entire Las Vegas Review-Journal story on its website without authorization and that there was no harm to the market for the story. Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, didn't try to use the story to raise money, and because the story in question was primarily factual as opposed to being creative. 'The market (served by the CIO) is not the R-J's market,' says Mahan. This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Green says that Righthaven's strategy of suing 250 web site and demanding $150,000 in damages plus forfeiture of the web site's domain name has clearly backfired and now Righthaven, the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all."

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88 comments

That's interesting (-1)

Anonymous Coward | more than 3 years ago | (#35551936)

Because I usually masturbate with my right hand.

Less protection? (5, Insightful)

Anonymous Coward | more than 3 years ago | (#35551954)

Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.

Re:Less protection? (4, Insightful)

sydneyfong (410107) | more than 3 years ago | (#35552114)

Ah. Jurisprudence.......

I believe in a more SchrÃdinger's Cat model of the law -- before it is decided, the law is half dead and half alive... :)

But seriously, even if the law existed before the decision, fewer similar cases will be filed against "infringers", which will make their lives easier.

Not everybody has the will or the means to fight this in court, even if they are actually "right".

Re:Less protection? (5, Funny)

Minwee (522556) | more than 3 years ago | (#35552216)

And until you actually write his name, it is both "Schrödinger" and "SchrÃdinger". And when you have already misspelled it, it's too late.

Re:Less protection? (2)

Stormwatch (703920) | more than 3 years ago | (#35552250)

Accentuation fuckups are usually text encoding errors, not typos.

Re:Less protection? (3, Funny)

Bacon Bits (926911) | more than 3 years ago | (#35552504)

Yes, yes, it's always a programmer's fault.

Re:Less protection? (1)

Tolkien (664315) | more than 3 years ago | (#35552862)

Yes, it is. Just like Stormwatch said.

Re:Less protection? (1)

socsoc (1116769) | more than 3 years ago | (#35555774)

wooosh

Re:Less protection? (1)

mortonda (5175) | more than 3 years ago | (#35558436)

Maybe not, but on slashdot? I'll blame the programmers. They haven't learned about i18n yet. Well, maybe I haven't tested it since the last redesign...

80

That should have a degrees symbol.

Re:Less protection? (1)

JAlexoi (1085785) | more than 3 years ago | (#35554340)

Did /. fix cure their Unicode allergies?
Nope....

Re:Less protection? (5, Interesting)

mpoulton (689851) | more than 3 years ago | (#35552258)

Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.

I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work. In reality, the law is not a preexisting and inherently complete construct that waits for humans to discover and apply it. "Case law" is so named for a reason: courts do, in fact, make new law when they issue rulings that clarify or modify the existing body of law. This case did so. Prior to this ruling, it was not clear what the result of such a case would be, and by deciding it this way, the judge has created law that answers the questions presented here. This is one of the essential functions of a common law legal system, though it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results.

IANAL, but IAA law student with 6 weeks until graduation.

It's called checks and balances (3, Informative)

tepples (727027) | more than 3 years ago | (#35552552)

it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results

It's called checks and balances. The judicial branch's power to make case law is not unlike the overlap between legislative and executive branches in the U.S. government. The President has power to block legislation that has 51 to 66% assent, and agencies have power to enact regulations that fill in the details of a law that Congress wrote in broad strokes.

Re:It's called checks and balances (0)

Anonymous Coward | more than 3 years ago | (#35559138)

anonymously posted because it is off-topic and related to parent's sig

"Sure, you can replace cable TV with a Netflix subscription, but you won't get sports anymore."
What about ESPN3? I can watch all my sports there. :)

Re:It's called checks and balances (1)

tepples (727027) | more than 3 years ago | (#35559432)

What about ESPN3?

ESPN3 isn't offered to end users, only to ISPs, and as I understand it, a lot of ISPs bow out because it's offered only under "nobody gets it unless everyone pays" conditions. It doesn't help if neither ISP serving your area has it.

Re:Less protection? (0)

Anonymous Coward | more than 3 years ago | (#35552912)

I see you believe in the "natural law" theory.

Uh, no, that was not involved in what I mentioned. Rather the opposite really, since I mentioned existing statutes and precedents which formed this decision, not some ethical principles or whatever you might wish to call it.

Prior to this ruling, it was not clear what the result of such a case would be, and by deciding it this way, the judge has created law that answers the questions presented here.

Nope, no "new" law was created here. This decision is not a change to the laws, it reflects those already in existence. For this to be something new, it'd have to be outside of precedent, which would mean that the judge would be in trouble. I might agree that the results might not be clear, though I think it is no more and no less than any other such case, but that's an issue of the interpretation of facts, not the creation of law.

 

Re:Less protection? (0)

Anonymous Coward | more than 3 years ago | (#35556630)

Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.

I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work. In reality, the law is not a preexisting and inherently complete construct that waits for humans to discover and apply it. "Case law" is so named for a reason: courts do, in fact, make new law when they issue rulings that clarify or modify the existing body of law. This case did so. Prior to this ruling, it was not clear what the result of such a case would be, and by deciding it this way, the judge has created law that answers the questions presented here. This is one of the essential functions of a common law legal system, though it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results.

IANAL, but IAA law student with 6 weeks until graduation.

mpoulton is absolutely right on the money in this case. The Platonic ideal that sits waiting for discovery is a rather outdated form of thought, not only about law, but everything. There is, in fact, legislative law that scribes black & white law (Black Letter Law), but it's the APPLICATION of the law that gives it dimension. Tangible est donatus vultus per intangible" ( tangible is given form by the intangible). You can thank modern physics for this new way of dealing with reality.

But in saying that ... the real point is that the Righthaven case is truly giving form to existing laws in the digital era. It has true legal implications in defining creative works well into the future.

Re:Less protection? (1)

Capsaicin (412918) | more than 3 years ago | (#35556660)

I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work

I think you are going to far in ascribing to OP an adherence to Natural Law theory, which implies the existence of Law, as if bestowed by Divine Providence, entirely anterior to human law making. Rather the judge is charged to discover the law which is "already there in the statutes [and] in the precedents." I think it would be better described as a species of legal formalism.

As far as "how things [really] work," I --being a neo-formalist ;) --believe that should be the furthest thing from a judge's mind, who should instead, entertain the pious fiction, that an objective (formal) legal answer (the result of prior human lawmaking) does exist, and which the accepted tenets of judicial interpretation will, almost algebraically, discover.

Re:Less protection? (5, Insightful)

davester666 (731373) | more than 3 years ago | (#35552336)

Yes, Fair-Use Rights do exist. It's an affirmative defense, where you have to prove that you do have the fair-use right [by paying somebody to find the statues and precedents that are relevant and presenting them to the court in the proper way, generally].

But they only exist, in a legal sense, once a judge has made a determination that, for a given set of circumstances, based on the written law and precedences for a specific location, and for the specific facts of one case, that it is a 'fair-use'. If any of these change, then a judge would have to make a new determination for the new case.

Before a judge rules, neither side can say with certainty that for a given circumstance, it is or is not a fair use, as it depends on the specific circumstances of a single case, which is unlikely to be exactly the same as an existing precedent [which the copyright holder will be all to happy to point out to you].

And LTFS, this precedent, like most other ones related to fair-use of copyright material, has a very specific set of circumstances related to it, which may not cover other uses, even if done in a similar way [for example, if you had a personal blog with GoogleAds on it, and you quoted a significant portion of the article, the precedent may not apply to you because the judge could say you are trying to earn money through the use of ads].

But, then again, IANAL.

Re:Less protection? (-1)

Anonymous Coward | more than 3 years ago | (#35553010)

Um, no.

Um, yes.

Re:Less protection? (0)

Anonymous Coward | more than 3 years ago | (#35553948)

"The outcome from lawsuit just exposes it,"

And because it's more commonly known (Except for those people who only read newspapers which will probably get no coverage on this ruling mysteriously) it will be harder in the future to FUD people into silence and settlements.

So yeah, it's "weakened" from the practical if not theoretical standpoint.

Re:Less protection? (0)

Anonymous Coward | more than 3 years ago | (#35553976)

So yeah, it's "weakened" from the practical if not theoretical standpoint.

I'll believe that when I see fewer news postings about such lawsuits.

I'd rather have genuine reform of the system, cuz I'm afraid they'd just hire lobbyists to change the law.

Re:Less protection? (1)

creeront (890604) | more than 3 years ago | (#35555864)

This may not even be precedential. Unless it gets published, it's only persuasive authority, not precedential authority. And even if the case gets published, it's only binding on that Federal District Court. The rest of the District and Appellate courts are free to do as they please.

Re:Less protection? (2)

Compaqt (1758360) | more than 3 years ago | (#35556486)

While true, it's also worth exploring how this ruling can have an effect without being a binding precedent: When making a ruling, judges often look for older cases which are related in some way.

They often even look to foreign jurisdictions (other states, or even countries). Yes, they're not binding, but they sometimes get cited anyway, as in "ABC court decided X, maybe that's good legal reasoning."

So, we haven't won the war, but a small battle nonetheless.

(N.B. sig.)

I love it (5, Insightful)

DaMattster (977781) | more than 3 years ago | (#35551956)

when the sue for profit fails miserably. Righthaven deserved being spanked down by the justice system. The mafiosi tactics have failed.

Re:I love it (0)

Anonymous Coward | more than 3 years ago | (#35554362)

Is it just me who thinks that if they lose too many lawsuits, they'll merely move to make fair use illegal.

Re:I love it (0)

Anonymous Coward | more than 3 years ago | (#35556900)

Is it just me who thinks that if they lose too many lawsuits, they'll merely move to make fair use illegal.

As opposed to what? A "fair use" that still formally exists but it's ineffective as protection?

Re:I love it (1)

Compaqt (1758360) | more than 3 years ago | (#35556858)

Righthaven did what was improbable: Getting into the Slashdot hall of shame such that any story about them is automatically front-page material, the equivalent of SCO, RIAA, MPEG-LA, MPAA, and friends.

HA! (3, Insightful)

WillyWanker (1502057) | more than 3 years ago | (#35551958)

HAHAHAHAHAHAHAHA fuck you douchebags!

Re:HA! (0)

Anonymous Coward | more than 3 years ago | (#35554796)

Took the text right out of my keyboard! :)

well.. (5, Insightful)

MickyTheIdiot (1032226) | more than 3 years ago | (#35551962)

Did the good guys win for once?

Re:well.. (0)

MichaelKristopeit407 (2018814) | more than 3 years ago | (#35551998)

only a bad guy would see the world through such hypocritically ignorant polarization.

Re:well.. (1)

Anonymous Coward | more than 3 years ago | (#35552002)

i dont know if we 'won', but the bad guys lost miserably.... and in the process put themselves in a worse position than where they started.... i guess you can call this a 'win' for the good guys...

Re:well.. (1)

postbigbang (761081) | more than 3 years ago | (#35552280)

In the sense that someone was attacked unjustly, defended themselves based on the law, and won, yes-- the good guys (e.g. defendants that weren't guilty) prevailed.

The law was what the law was; no new groundbreaking precedent-setting decision. Just a look at the litigation, and the law, with a judgment that followed the law and didn't invent anything new.

"the story in question was primarily factual" (5, Funny)

John Hasler (414242) | more than 3 years ago | (#35552014)

The ruling is irrelevant to most of the news media, then.

Re:"the story in question was primarily factual" (1)

ignavus (213578) | more than 3 years ago | (#35556420)

The ruling is irrelevant to most of the news media, then.

True. But then, why would you want to copy the non-factual stories on Faux News?

Didn't try to use the story to raise money? (4, Interesting)

_0xd0ad (1974778) | more than 3 years ago | (#35552046)

I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.

And even if facts can't be copyrighted, a specific arrangement of them can be. The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.

I don't think that ruling is correct and I expect it'll be overturned.

Re:Didn't try to use the story to raise money? (2, Informative)

Sique (173459) | more than 3 years ago | (#35552088)

But the defendant prevailed on Fair Use claims. The statute of Copyright is limited, and the judge was showing Righthaven the limits of the statute.

Re:Didn't try to use the story to raise money? (1)

wvmarle (1070040) | more than 3 years ago | (#35555940)

Still it surprised me that this is fair use as it was a complete reprint and redistribution of an article; usually it's about excerpts or quotes for redistribution, or for private copies.

Re:Didn't try to use the story to raise money? (3, Informative)

Sique (173459) | more than 3 years ago | (#35557906)

It's because the original claim from Righthaven, that the publishing of the whole article would diminish its value on the market was thrown out because Righthaven does in fact not publish the article, but solely files suits against other people publishing it. So republishing an article with currently no value at all on the market by a non profit was considered fair use.

Re:Didn't try to use the story to raise money? (1)

wvmarle (1070040) | more than 3 years ago | (#35560306)

So the result could have been very different if the publisher of the news paper or whatever where the article was published first had filed suit? Interesting.

Re:Didn't try to use the story to raise money? (1)

Sique (173459) | more than 3 years ago | (#35561202)

Yes. The verdict was basicly the judge telling Righthaven: Your business model sucks.

No take-down notices from Righthaven either (1)

yuna49 (905461) | more than 3 years ago | (#35559668)

One key point in the ruling not yet mentioned is that Righthaven did not employ the take-down procedures set in place by the Digital Millennium Copyright Act. They failed to notify the blogger or the blogger's ISP, presumably because they knew that doing so would result in the piece being removed from the blogger's site and eliminating Righthaven's chance to profit.

Like others, I'm a bit troubled by how sweeping a ruling this seems to be. On its face it seems to give nonprofit groups a "fair-use bonus" just because of their nonprofit status. I can understand the finding of limited "harm" to the copyright holder and perhaps even accept the non-competing markets part of the ruling. I would still argue nonprofits should have to defend their use of copyrighted materials with the standard list of defenses in the Copyright Act. I also have problems with the portion of the judge's ruling that claims a long investigative story doesn't qualify as a "creative work" because it's purely "factual" in nature.

Those qualms aside, I don't have any problems with the judge ruling that plaintiffs must first use the procedures Congress put in place to handle disputes of this kind before bringing them to the courts. One of the commentators to the linked article reported that Righthaven had earlier rejected sending take-down notices because of the costs involved. I'll just observe in passing that little Funimation [animenewsnetwork.com] , an American distributor of Japanese anime, had no problem finding the funds to send 1,337 (yep, that's the figure) take-down notices to file sharers. I'd bet Stephens Media has a lot more resources available to devote to take-down notices than a company whose annual revenues are well under $100 million.

Re:Didn't try to use the story to raise money? (5, Informative)

tinkerghost (944862) | more than 3 years ago | (#35552124)

Fair use in the US hinges on many things, including how you're using the material. Educational non-profit usage rates fairly high on the fair use scale. Using the same material in the same way on a for-profit site may not have been able to succeed with a fair use claim.

Re:Didn't try to use the story to raise money? (2)

snkiz (1786676) | more than 3 years ago | (#35552176)

Sure you can, schools to that sort of thing all the time, mostly with newpapers. That is the point of fair use.

Re:Didn't try to use the story to raise money? (2, Informative)

John Hasler (414242) | more than 3 years ago | (#35552188)

I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.

That can be one of the factors in fair use.

And even if facts can't be copyrighted, a specific arrangement of them can be.

USA copyright protects only creative expression.

The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.

See Feist v. Rural [wikipedia.org] .

Re:Didn't try to use the story to raise money? (1)

_0xd0ad (1974778) | more than 3 years ago | (#35554022)

See Feist v. Rural.

Yes, I'm familiar with it. Note the following:

It is a long-standing principle of United States copyright law that "information" is not copyrightable, O'Connor notes, but "collections" of information can be.

...

In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data.

In other words, although the names and numbers are purely factual and cannot be copyrighted, and the arrangement of them is obvious (alphabetical), the formatting and presentation can still be copyrighted. I.e. margins, page header/footer, columns, and even the typeface used. Simply scanning the pages and printing an exact duplicate phone book would infringe on its copyright, whereas copying the information out of it did not.

I also wonder about the following:

Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.

If fact may not be copyrighted, fiction certainly can - so would the phony entries not be considered "creative"? Why not? It seems to me that Feist infringed on Rural's copyright, not in the republication of the factual names but at least in the republication of the fictitious ones. But apparently either Rural's lawyers didn't think of that or the judge didn't think it mattered.

Re:Didn't try to use the story to raise money? (1)

wvmarle (1070040) | more than 3 years ago | (#35555968)

Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.

If fact may not be copyrighted, fiction certainly can - so would the phony entries not be considered "creative"? Why not?

While they may be considered creative works; in this case they were presented as facts: they were part of a factual work, which was distributed as being factual information only. So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason. Someone trying to (legally) copy the factual information from the work, when sued for infringement on those phony entries, might even argue illegal entrapment and misleading by the original author.

Re:Didn't try to use the story to raise money? (1)

_0xd0ad (1974778) | more than 3 years ago | (#35556236)

So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason.

So anyone who presents fiction in a manner so as to make it appear factual loses copyright? And, if someone believes it to be factual, they have carte blanche to copy it freely? I doubt it.

Someone trying to (legally) copy the factual information from the work, when sued for infringement on those phony entries, might even argue illegal entrapment and misleading by the original author.

Presumably it would be the responsibility of the one doing the copying to ensure that what they were copying was, in fact, factual... seeing how they'd need to verify the veracity of the information to avoid violating a copyright. And misleading? The phone book is not intended to be a listing of every number registered with its proper owner; some numbers are unlisted and wouldn't appear at all. The phone book is intended to be a one-way reference: you know the name, you look up their number. This is guaranteed: that if you look up a real, factual name, and that person is listed, you will get their most up-to-date number, insofar as the phone book publisher knows it to be true. In what way does that guarantee that fictional names might not be given with fictional numbers? They were using the phone book in a manner for which it was not intended, and its accuracy was not to be assumed.

Re:Didn't try to use the story to raise money? (1)

wvmarle (1070040) | more than 3 years ago | (#35556330)

So it is not obvious that it is creative information, on the contrary, it's designed to look like it's factual information and part of the collection. I can imagine that they lose copyright protection for that reason.

So anyone who presents fiction in a manner so as to make it appear factual loses copyright? And, if someone believes it to be factual, they have carte blanche to copy it freely? I doubt it.

In this specific case the phony numbers were introduced with the specific goal of looking like facts, just to detect copying. No carte blanche here; case by case; as is fair use.

Presumably it would be the responsibility of the one doing the copying to ensure that what they were copying was, in fact, factual...

In case of a phone book, I would say "that IS the reference for the fact". Short of calling each number to ask whether the name/number is correct, this is your fact check. The telephone book lists numbers and implicitly tells you "this are the numbers; this are the facts; to our best knowledge they are correct". Yet they add a few fakes in between the million or so real ones - how would we be able to detect this? To find out which are fakes and which are accidental error? When a work says "this is factual information" then I would say for all copyright related issues that is to be treated as a collection of facts.

Or how about facts presented in text books: like "the melting point of iron". An interesting example actually, as the first two search results in Google give different answers: the first gives 1536C, the second 1535C. How can we check the fact? Look at other resources. But how can we be sure this is a fact? Would you measure it? When can you be sure enough that the answer to a factual question is the actual fact? Which source is more reliable?

Re:Didn't try to use the story to raise money? (1)

_0xd0ad (1974778) | more than 3 years ago | (#35557948)

In case of a phone book, I would say "that IS the reference for the fact".

Then the reference they were looking for doesn't exist, because the phone book has one utility: you look up a name, and you find a number for that name. The reverse isn't guaranteed, nor is it guaranteed that every name will be listed, or that every name listed is accurate. As long as it isn't the name that you need to look up, it really isn't guaranteed at all. It'd be convenient, of course, for Feist to go ahead and assume these things.

However I'd agree that it makes it almost impossible to tell the facts from the fiction and, if the telco chose to go that direction, Feist's immediate response should be to remove all of the named fictitious listings (in the copyright suit they'd have to be named as the material being claimed for infringement) and fight the suit on the basis that they had no reasonable way of telling that the listings were not factual and therefore could be copyrighted.

And the fact is that number goes with that name (0)

Anonymous Coward | more than 3 years ago | (#35558068)

And the fact is that number goes with that name, and the UTILITY is that the Joe Bloggs you're asking for the number of is the Joe Bloggs you want, not a Joe Bloggs that just happens to have the same name as your required contact, nor that it is a fake number or name that just happens to be the name of the person you want.

Therefore the fact that Joe Bloggs 533 0543 043 doesn't exist is merely ANOTHER fact to contribute that the name and number are associated as fact.

Re:And the fact is that number goes with that name (1)

_0xd0ad (1974778) | more than 3 years ago | (#35559010)

It also lists address. Often there are lots of listings for the same last name, many of which don't have full first names, maybe just a first initial. However, if you find the "Bloggs, J" listed at the address which you know he lives at, you can be confident that the number is accurate. The probability would be vanishingly slim that you'd find a fake listing when looking for an actual person.

Re:Didn't try to use the story to raise money? (4, Informative)

cpt kangarooski (3773) | more than 3 years ago | (#35552314)

I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.

Normally no, but it is relevant in determining whether or not the use was a fair use; if it was fair, it is not unlawful despite otherwise being infringing. Of course, there are a number of factors that go into determining fair use, and it is always very fact-dependant. Just because a particular type of use is fair under one set of circumstances doesn't mean it will be under others.

And even if facts can't be copyrighted, a specific arrangement of them can be. The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.

Can be doesn't mean is, though. The arrangement and selection of non-copyrightable facts must itself be creative in nature as well as original (though do remember that originality, i.e. not having been copied, is not the same thing as novelty, i.e. never having been done before). A typical white pages will not be copyrightable in it's arrangement and selection of facts because it selects all the facts for a given area (few people want a phone book with only some listed numbers) and it arranges them in an uncreative way: last name, first name or initial, address, telephone number. Often this isn't an original way either, since they're just copying how other phone books were arranged.

In any case, I doubt there were arguments made that the article was uncopyrightable. Rather, how factual vs. how original a work is is another part of a fair use analysis. Generally, uses are more likely to be fair, the more factual the work used is.

Re:Didn't try to use the story to raise money? (1)

garyebickford (222422) | more than 3 years ago | (#35561406)

Can be doesn't mean is, though.

This is totally irrelevant to the discussion, but I wonder what Watson would do with this sentence. :) (And would Watson recognize the reference to Watson?)

Re:Didn't try to use the story to raise money? (2)

517714 (762276) | more than 3 years ago | (#35552468)

I believe the most important conclusion to be drawn is that copyright is to be used as a defense against others taking your published material and that without a takedown notice being issued, it serves as an offensive weapon only. That is the one part of the ruling that will stand up. Righthaven owns the copyrights and doesn't use or license them except for lawsuits so it was attempting to profit from the violation rather than simply to protect the material or obtain reasonable payment for the use of the material.

Re:Didn't try to use the story to raise money? (0)

Anonymous Coward | more than 3 years ago | (#35557744)

I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.

According to the little blurb that was on all UK VHS tapes for the last 20 years, that was exactly the purpose of copyright law - the only prevented uses were those for commercial and profit-making purposes.

It seems to have changed recently - despite the law having remained exactly the same. So presumably the 'interpretation of law' has been changed recently.

Re:Didn't try to use the story to raise money? (0)

Anonymous Coward | more than 3 years ago | (#35557880)

This was in the US.

Gibson and Darl McBride (1)

MysteriousPreacher (702266) | more than 3 years ago | (#35552140)

Separated at birth?

They really should team-up. McBride's foray in to profit through litigation was pretty successful, apart from the destruction of SCO and his having to carry a handgun.

Less protection than if they hadn't filed... (0)

Anonymous Coward | more than 3 years ago | (#35552186)

Too bad they probably can't be held liable for establishing a precedent; if the newspapers now sued them for messing up it would be a nice double-whammy.

About time (5, Interesting)

shawnhcorey (1315781) | more than 3 years ago | (#35552190)

Now if someone could convince a judge that companies (like patent trolls) that suffer no loses should get no compensation, then things might start looking up.

Re:About time (2)

hedwards (940851) | more than 3 years ago | (#35552330)

The problem there is at the federal level. Locally in order to be awarded damages you have to prove them. At the federal level there's all sorts of silliness like statutory damages and AFAIK there is no requirement that one demonstrate that one was damaged for other types either.

Re:About time (1)

wvmarle (1070040) | more than 3 years ago | (#35556032)

The problem with damages is the proof. How can you prove you did not receive something? Or that you received less than you otherwise would have?

Take a patent holder who has made an interesting invention, tries to find a partner to help him build/market this product, but instead someone else takes the patent, starts producing the stuff, and the inventor sees his market swamped by infringing products before they get a chance to sell some themselves. So they sue. But for how much damages? How much could he have made if the others didn't jump in? Maybe a lot, maybe nothing (due to poor business decisions). We don't know, can't tell.

Or music copyrights: many people argue that file sharing is part of advertising for music, and may help increase sales. So that would mean there is no damage at all, on the contrary. Or is it? So one could infringe copyright but evade penalties because they "helped" the copyright holder?

Not to defend those obvious patent trolls, but actually proving a loss is pretty hard. Proving you have the intention to use the patent may be a better direction, but also that is pretty hard to do. And it would erode the patent protection, which is not a good thing I think. There are plenty of inventors around who develop stuff without the intention to make it themselves - think ARM. They only design processors, and then sell those designs for others to produce (I guess these fall under copyright though, not patent right). They don't produce any processor by themselves (other than prototypes maybe).

And anyway for such a patent troll also the obvious proof of losses would be "look I have this link patent, I offer to license it for $0.10 for each web browser user that uses it, so with about one billion browsers that's a loss of $100 mln on license alone".

Re:About time (1)

shawnhcorey (1315781) | more than 3 years ago | (#35558394)

You missed the point. Patent trolls do not produce any product; they do not have facilities to produce any product; they not have plans to produce any product; and they are not trying to sell the patent to someone who can produce a product. They have no loses; they're not entitled to any compensation. If an inventor is trying to sell his patent, there is a trail of evidence to show this. There would be letters, emails, meetings which show he is making the effort. But just saying, "look I have this link patent, I offer to license it for $0.10 for each web browser user that uses it, so with about one billion browsers that's a loss of $100 mln on license alone," is not an offer. He has to make an effort; either through direct soliciting or by an advertising campaign but he will always have something to show that he made the effort.

Non Disclosure Agreements abound. (0)

Anonymous Coward | more than 3 years ago | (#35558950)

Non Disclosure Agreements abound. Funny how people seem to forget that they exist when they're complaining that patents are necessary for the little guy.

And, unlike a patent, an NDA NEVER EXPIRES.

Court should mean everyone has something to lose (2)

redelm (54142) | more than 3 years ago | (#35552276)

This is a normal outcome, particularly from a ruling rather than the more common settlement.

Court should not be the means of first-resort, but the means of last resort. Everyone who walks in the door should potentially have something significant to them to lose. Otherwise, why settle? Legal costs deter small players, unexpected adverse rulings have to deter large players.

Re:Court should mean everyone has something to los (0)

Anonymous Coward | more than 3 years ago | (#35558786)

court is the third to the last means of resort. the second to the last means of resort is government sanctioned force. and the last means of resort is force.

Oblig Nelson Muntz (0)

Anonymous Coward | more than 3 years ago | (#35552452)

Haw Haw!

the Las Vegas (2)

homey of my owney (975234) | more than 3 years ago | (#35552566)

Is that anything like "The Google?"

Re:the Las Vegas (1)

twidarkling (1537077) | more than 3 years ago | (#35552982)

I'm sure it's more similar to "The Wall Street." As in "Journal."

Re:the Las Vegas (1)

thomst (1640045) | more than 3 years ago | (#35553210)

Is that anything like "The Google?"

TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)

A little research on Stephens Media and... (1)

ibsteve2u (1184603) | more than 3 years ago | (#35553902)

TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)

I hope you washed the money they paid you...a little research suggests that it was probably a lot slimy [techdirt.com] .

Re:A little research on Stephens Media and... (1)

thomst (1640045) | more than 3 years ago | (#35558320)

TFS should have read the "Las Vegas Sun" - the other daily paper in Vegas, and one with a decidedly more leftward tilt than the strongly conservative Review-Journal, whose proxy Righthaven is. The Greenspun Media Group, which owns the Sun, also owns the "Las Vegas Weekly", one of two major alternative weeklies in Vegas (the other is Las Vegas Citylife, a Stephens Media paper, for which, in the interests of full disclosure, I wrote a cover story [lasvegascitylife.com] in 2008.)

I hope you washed the money they paid you...a little research suggests that it was probably a lot slimy [techdirt.com] .

Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."

Which brings up the question of why you believe that a freelance writer (i.e. - me) selling a story to a weekly magazine whose editorial management is (as is the case with EVERY ethical news operation) completely divorced and firewalled from the business management side of the operation is in any way unethical, immoral, or "slimy".

My hunch is that you're just a dimwiit who didn't bother to read MY article, who is profoundly unfamiliar with the principle of editorial independence in professional journalism, and who has such a pathetically weak little ego that you have to reach around the block for a pretext to feel morally superior to strangers, based on nothing but someone else's hot air.

Having said that, I want to make clear that I have zero sympathy with Righthaven's handwaving, and I consider Stephens Media to have made a major error in judgement in allowing itself to be linked with those scumbags. Yes, it's getting harder and harder for newspapers to turn a profit as online news aggregators increasingly steal their readers. That's tough (and it's particularly tough on those of us who write for a living, since the very newspapers and magazines that the aggregators are parasitizing are the source of much of our income), but it still doesn't make it a good idea for them to associate themselves with legal bullying. However, I doubt that it will cost them many additional readers, because most people just don't give a damn about copyright trolling.

Anyway, the courts have shown little sympathy with Righthaven's conduct. Copyright trolling has turned out not to be the license to print money that Righthaven expected it to be, and I fully expect it to fold its tent and slink silently back into the slime from which it oozed, RSN.

Re:A little research on Stephens Media and... (1)

ibsteve2u (1184603) | more than 3 years ago | (#35561518)

Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."

Which brings up the question of why you believe that a freelance writer (i.e. - me) selling a story to a weekly magazine whose editorial management is (as is the case with EVERY ethical news operation) completely divorced and firewalled from the business management side of the operation is in any way unethical, immoral, or "slimy".

Huh....actually, I chose to use the link to techdirt's piece 'cuz using Wikipedia is often considered to be "too easy" [wikipedia.org] while I figured including a link to the statement of the President and CEO of Stephens Media announcing that Stephens Media had "grubstaked and contracted with a company called Righthaven" [lvrj.com] and filed 22 lawsuits as merely their opening salvo was likely to bias the reader.

Especially if the reader knew the definition of "grubstake" [thefreedictionary.com] .

.And I said the money they paid you was likely slimy; I did not say you were slimy for accepting it - rather, you chose to interpret it that way. Or perhaps, rather unusually for a freelance writer in America, English is your second language?

Re:A little research on Stephens Media and... (1)

thomst (1640045) | more than 3 years ago | (#35561852)

Uh, that's certainly VERY "little research". Essentially, it's an opinion piece that includes two quotes - one from a Stephens Media rep who expresses hope that the lawsuits in question will result in more linkbacks to LVRJ articles online (and, by implication, fewer cops of LVRJ content), and the other from the slimebag that runs Righthaven. Now, since Stephens Media does NOT own Righthaven, I fail entirely to see how this "suggests" in any way, shape, or form that Stephens Media is "probably a lot slimy."

Which brings up the question of why you believe that a freelance writer (i.e. - me) selling a story to a weekly magazine whose editorial management is (as is the case with EVERY ethical news operation) completely divorced and firewalled from the business management side of the operation is in any way unethical, immoral, or "slimy".

Huh....actually, I chose to use the link to techdirt's piece 'cuz using Wikipedia is often considered to be "too easy" [wikipedia.org] while I figured including a link to the statement of the President and CEO of Stephens Media announcing that Stephens Media had "grubstaked and contracted with a company called Righthaven" [lvrj.com] and filed 22 lawsuits as merely their opening salvo was likely to bias the reader. Especially if the reader knew the definition of "grubstake" [thefreedictionary.com] . .And I said the money they paid you was likely slimy; I did not say you were slimy for accepting it - rather, you chose to interpret it that way. Or perhaps, rather unusually for a freelance writer in America, English is your second language?

Oh, fer pity's sake:

grubstake/grbstk/ Verb: Provide with a grubstake. Noun: An amount of material, provisions, or money supplied to an enterprise (originally a prospector for ore) in return for a share in the resulting profits.

"A share in the profits" /= ""ownership".

And: "I said the money they paid you was likely slimy; I did not say you were slimy for accepting it - rather, you chose to interpret it that way," is sheer semantic handwaving on your part. Claiming that money paid for work entirely unrelated to copyright trolling and predating the creation of Righthaven by nearly three years is "slimy" implies a moral judgement on YOUR part about MY accepting it.

So kindly go fuck yourself, Judgey McJudgington.

Re:A little research on Stephens Media and... (1)

ibsteve2u (1184603) | more than 3 years ago | (#35562402)

It is my observation that, quite often, those who set out to ruin the lives of many, many others on the off chance that they can turn a profit from an act that many would term to be malicious money-grubbing are just expanding a pattern of behavior that equally as typically extends years and even decades in their past. Hence my use of the word "probably"...and my ignoring of your article's origination on the time-line of events.

Perchance do you still get royalties for that article? You seem quite eager to get people to read it...even providing a link when it could be argued that said link has nothing to do with this slashdot article and was unnecessary in your original comment given that the claim of having written it means nothing on the web...i.e. I could as easily have claimed to have written it and included a link so as to harvest the click-profits for myself.

Given your closing line, I will close by saying that I am amused that you find the use of words in strict compliance with their dictionary definition to be "sheer semantic handwaving" while claiming that taking a financial position in RightHaven in order to harvest "a share of the profits" does not represent a business transaction that specifically endorses what RightHaven does. So in the interests of semantic clarity, I will not tell you to "go fuck yourself"; I am aware that it is nearly physically impossible and I do not wish to learn of cases where it is not.

Re:A little research on Stephens Media and... (1)

thomst (1640045) | more than 3 years ago | (#35570538)

It is my observation that, quite often, those who set out to ruin the lives of many, many others on the off chance that they can turn a profit from an act that many would term to be malicious money-grubbing are just expanding a pattern of behavior that equally as typically extends years and even decades in their past. Hence my use of the word "probably"...and my ignoring of your article's origination on the time-line of events.

Blah, blah, attempted post hoc justification, blah.

Perchance do you still get royalties for that article? You seem quite eager to get people to read it...even providing a link when it could be argued that said link has nothing to do with this slashdot article and was unnecessary in your original comment given that the claim of having written it means nothing on the web...i.e. I could as easily have claimed to have written it and included a link so as to harvest the click-profits for myself.

No, I don't get royalties for that story. You obviously don't understand how freelance writing works ... as only one of myriad things you obviously don't understand.

Go away, you dickless troll.

Re:A little research on Stephens Media and... (1)

ibsteve2u (1184603) | more than 3 years ago | (#35579124)

It is my observation that, quite often, those who set out to ruin the lives of many, many others on the off chance that they can turn a profit from an act that many would term to be malicious money-grubbing are just expanding a pattern of behavior that equally as typically extends years and even decades in their past. Hence my use of the word "probably"...and my ignoring of your article's origination on the time-line of events.

Blah, blah, attempted post hoc justification, blah.

Perchance do you still get royalties for that article? You seem quite eager to get people to read it...even providing a link when it could be argued that said link has nothing to do with this slashdot article and was unnecessary in your original comment given that the claim of having written it means nothing on the web...i.e. I could as easily have claimed to have written it and included a link so as to harvest the click-profits for myself.

No, I don't get royalties for that story. You obviously don't understand how freelance writing works ... as only one of myriad things you obviously don't understand.

Go away, you dickless troll.

Oh, I know how freelance works...once you went off the deep end in your first reply to me, I took it upon myself (I am easily amused) to see how far you would go to demonstrate the quality and balance the reading public and prospective buyers could anticipate from one of your submissions - to include the one you quite generously associated this thread with.

I believe that we have both succeeded in our intentions.

Re:the Las Vegas (1)

Locke2005 (849178) | more than 3 years ago | (#35554608)

More like "The La Brea Tar Pits", which translates to "The The Tar Tar Pits".

From the Department of Redundancy Department (1)

zooblethorpe (686757) | more than 3 years ago | (#35581250)

Perhaps another Pinkwater fan? :)

One of my favorite silly names is from a sign in front of a small municipal building in Indiana. Though not visible from Street View [google.com] , the last time I was by there, the sign out front proudly proclaimed: City of Gas City City Hall.

Though more obscure this side of the water, another of my favorites is a sign along the waterways in Koutou-ku in Tokyo, labeling a tributary as the Shin-sen-gawa River. Translated fully, it's apparently the New River River River.

Cheers,

at least (1)

Anonymous Coward | more than 3 years ago | (#35552796)

Until its appealed

them sons of whores ... (2)

unity100 (970058) | more than 3 years ago | (#35554630)

what does "forfeiture of the domain name of the company" even BEGIN to mean ?

when at&t, general motors, or bp is sued, can anyone put a 'forfeiture of the trademark' clause in their demands ?

how can these sons of whores are even able to come in front of a court with such a demand ? dont excuse the strong language - im really out of strong words to describe this situation. if you know some, please use them in a sentence with word 'Righthaven' so that i will learn some socially acceptable strong wordage for such a situation.

Re:them sons of whores ... (1)

Theaetetus (590071) | more than 3 years ago | (#35558010)

what does "forfeiture of the domain name of the company" even BEGIN to mean ?

Google "UDRP".

Bad news (0)

Anonymous Coward | more than 3 years ago | (#35554988)

This is bad. This is an excessive decision by most people's understanding of right and wrong (or, in the case of copyright, appropriate and inappropriate). This will cause a new piece of legislation on which all sorts of horrible clauses will be added unnecessarily.

Polo tops for all (-1)

Anonymous Coward | more than 3 years ago | (#35555096)

Polo-tops.com is a wonderful collection of polo tops. There get a lot of polo tops for men and women. With a view of long term business relationship, more preferential policies could be offered to you. To get more information, please kindly contact our customer service.

polo tops for all [polo-tops.com]

Nonprofit != no profit (0)

Anonymous Coward | more than 3 years ago | (#35556500)

LOL! Nonprofits work for money, too, and it's often more than for-profits earn.

On fairuse, (0)

Anonymous Coward | more than 3 years ago | (#35557926)

a judge rules fair use was in fact fair use.

WHOOHOO! (0)

Anonymous Coward | more than 3 years ago | (#35558038)

All I can say is: WOOHOO! Now if only somebody would sue for DMCA. ... i should be able to rip my DVDs legally!

SHHHHH (1)

Revek (133289) | more than 3 years ago | (#35558108)

the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all."

Ive often thought copyright trolls are our only hope of defeating the current copyright situation. They will let their greed make them look bad. Their perception of "hey we can get all these people to fork over their assets cause the law is on our side". I imagine all these trolls begin somewhat close to the major copyright organizations. either they got sued, or learned how to sue people based on what the mpaa and the riaa have done.

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