DU Rules were followed and Righthaven still sued DU

[RamboLiberal]

Misconception in other thread I started here by some posters. I just wanted to set record straight.

DU is being sued for posting 4 paragraphs from Las Vegas Review-Journal out of 34 paragraphs and link back to Las Vegas Review-Journal was posted.

Court records show the Review-Journal posted a 34-paragraph story on its website May 13 about Republican Nevada U.S. Senate candidate Sharron Angle titled "Tea Party power fuels Angle."

The records show that on the same day, Democratic Underground website user ..... posted the first four paragraphs of that story, crediting it to the Review-Journal, and included a link to the rest of the story on the Review-Journal website.


http://www.lasvegassun.com/news/2010/aug/11/righthaven-sues-democratic-underground-website-ove/

I removed the user name.

For example, one of its recent lawsuits is against the political forum Democratic Underground, where a user (not the site owner), quoted a mere 4 paragraphs of a 34 paragraph story -- and included a link to the full story. No matter, Righthaven sued. As it does in all of these lawsuits, it's demanding $75,000. The number is carefully chosen, because it's less than what going to court will likely cost. The idea is to just get people to pay up, even if the legal claims are bogus. Beyond the $75,000, it's laughably demanding that the domain name of the site be turned over as well.

Righthaven tries to avoid the obvious DMCA safe harbor issue with the following:

"The defendants' failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the website constituted and constitutes the defendants' willful blindness to copyright infringements occurring on the website ..."

http://www.techdirt.com/articles/20100812/01454910601.shtml

[hlthe2b]

1. One can sue for anything... prevailing is quite another matter

This group seems intent on intimidation--not prevailing necessarily.

[RamboLiberal]

2. I hope they don't prevail

However I think there is a helluva lot of judges who don't have a clue when it comes to the internet and are still working off 20+ year old perceptions of copyright infringement.

[hlthe2b]

3. The fact that it is internet doesn't change "FAIR USE"

and that is what is at play, at least from my reading of the whole deal. They think that, given the cost of extended litigation over time, they can intimidate smaller players... My reading is that they KNOW that they will not prevail long term because case law on "Fair Use" is reasonably well established. But, if they can abuse the system, they can profit (and they are asking for ridiculous sums of $$ in addition to bloggers relinquishing the rights to their own names. This is legal abuse, plain and simple--for profit, on the part of this hired bunch of thugs and in the guise of protecting copyright for their struggling media clients, who are justifiably scared about the future of their industry.

[marybourg]

16. Copyright infringement doesn't depend on perceptions. It depends

on law.

[Kweli4Real]

20. I beg to differ ...

All law depends on "perception!" That is why a Thomas and a Marshall would differ on an issue such as Affirmative Action.

[RandomThoughts]

4. Intimidation strengthens your opponent.

It is why coercion does not work.

Look at it this way, if you educate, you can teach someone to think and feel and see something if they agree it is better.

If they were good the education would be enough.

If there is a group that does not want to think in better ways, they will always think that anything done to them that they survive proves them right, and if something kills something near them, because they think of judging themselves better, they just say that person deserved it and that also is used for them to justify their position.

So say 1000 people had something they should not, but they disagree on that point. If you went through them hurting or even killing them, it would have no effect. If you killed 50 of them, the 950 would point and say they are just and the 50 were bad, if you killed 150 more, the remaining 800 would say they are just because it did not happen to them.

So eventually they get hurt, and they say they survived it because they are just.

Then they disappear, because

What else can you do...


That is why I don't believe in coercion, and just listen to beautiful music. And do not believe in hurting or killing people.

[hlthe2b]

6. And this is at play here for DUers, how?

It is this group that is suing all the bloggers who is using intimidation to prevail, knowing the law is not on their side. Are you suggesting that those bloggers not fight back? :wtf:

I guess I am not understanding the point you are trying to make. You seem to be suggesting we should all react out of that intimidation, to censor our fair use of linked clips, out of fear of these charlatans?... Please clarify as I don't follow... :shrug:

[RandomThoughts]

11. Not about law suits, about a phrase someone said.

Not about the data in the post. about the concept of education versus coercion.


Why would I comment on a post?

The post has nothing to do with some article in the news, the post is about some thoughts on the concepts of coercion.

To comment on the data would assume it is true, to comment on the functions shown in some article is something else.


The use of copyright laws as targeted justice is a form of coercion.

[Warpy]

9. It's a lawsuit mill, basically

that hopes people will settle out of court and make its whack on the contingency fees earned quickly and easily from people who want to make it go away.

It's a lucrative business until someone finally stands up to them and then countersues.

[Stinky The Clown]

14. That's all fine and dandy, but the defense of such suits costs a lot of money

Most often that money is gone. Even if you win, you lose. That's why we have out of court settlements. They cost less.

[Dover]

36. I'm assuming righthaven has a legal relationship with that Journal?

If not, what grounds do they have to sue for copyright infringement?

[RamboLiberal]

42. They have a partnership

One thing that makes this look like a money-grubbing sleazy scheme is Righthaven trolls for these postings on the web then buys the the article's copyright and then sues.

[Aramchek]

5. what's next, are they going to sue an 8th grader for quoting them in an essay?!?

the citation was annotated.
it linked directly to the source.

DU is not a printed publication, anyway. There is no sale of anything here.

These clowns don't have a leg to stand on,
I hope Skinner countersues for malicious prosecution and abuse of process + Legal Expenses.

This kind of teabaggin' legal harrassment must end.

[npk]

31. That depends. Is the 8th grader making money off that quote and essay.

Democratic Underground makes money off advertisers. The more people who visit this site, well blah blah blah you know the rest. Since people come here largely to read material that is created and published outside of this website, a company could make a case that DU is profiting based on that company, website, or publications content. No matter how much of the content is posted. DU is a for-profit website. If they were a non-for-profit website then there would be less of a reason to sue. The good news for DU is that they are an "LLC". Which means they have limited liability in regards to what people who visit this website post. If DU was not a "LLC" then they might be in trouble. The only thing this company that is suing DU is going to be able to do is go after the person who posted the article and since that person is unlikely to have deep pockets I doubt they will.

[Waiting For Everyman]

34. I disagree that what DU offers is articles.

We could all go and read articles all over the web ourselves. And we do, without DU involved in it. The link and/or excerpt in a post is merely a convenience. We come here for the DISCUSSION ABOUT what's linked... which is UNPAID, and non-profit in every way.

A post could simply state, "the article I'm referring to is on 'so and so' site about 'such and such' ", and we could go and read it ourselves... and then go ahead with our opinions about it. People come here for what posters have to say about an article or topic.

If anything, a "content producer" is getting free advertising. The solution seems simple to me - anybody who can't or won't appreciate that free advertising could simply never be linked anymore. They wouldn't be missed, I doubt that anybody would care.

I agree this is a frivolous suit. There isn't even any logic to it. I predict it will fail.

[npk]

37. I agree with all you said

I'm just saying what and how copyright cases can be defined. Most if not everyone who visits DU does, as you say, come here for the discussion. Unfortunately a lot of people use google to search news stories and sometimes a post that is in LBN will pop up on google. A person could click that link and read a rather large excerpt and never visit the site that it originated from.


I know and you know it's bullshit, but the law can be very dry when looking at civil case.

Still DU should have little to worry about because they are an LLC

[RamboLiberal]

43. So far I don't think they have gone after posters themselves

They are going after website owners. And they have been suing large & small from my understanding. I think they may be suing even where no ads are posted, i.e. no profit.

[npk]

48. Thanks Rambo

For the info you posted in the OP. This was something that needed to be posted. You are right that they can go after websites that are non profit. I think, like you and others, this is more of an attack on DU because this group believes that DU will settle to avoid having to pay expensive court and legal fees that are associated with these kind of suits. I also have no doubt that DU will fight this suit, especially since their is no malicious intent on the site or even the posters to profit from simply posting excerpts of news articles or other stories.

[Xithras]

7. The "short excerpts are fair use" thing is an Internet urban legend

And one that has no basis in legal reality.

Duplication of a single sentence can be a copyright violation...if your only action is to duplicate someone elses text. Duplication of three pages of content can be fair use...if the duplicated content is placed within a larger work and is used as reference material for another work. The amount of the work has NO RELATION to it's coverage under American "Fair Use" exceptions. See Folsom v. Marsh, 1841.

What really matters is the nature of the work. If I write a four paragraph post about President Obama's healthcare policies, and quote three lines from a CNN article to make a point, that qualifies as fair use because the post itself is an editorial, and the quote is simply supporting information. If I slice two paragraphs from a CNN article, and follow it up with a sentence saying "Hey guys, look what this freeper idiot wrote", that is NOT fair use, because the value of my post is derived from the quote, and not any editorializing I wrote. I'm simply duplicating the material, and am not writing an article of commentary, criticism, or research.

There's a real simple test for this. If you take the quote out, does your post still have any commentary, editorial, or research value....or even make sense? If the informational value of your text is based solely on the information contained in the excerpt, you're going to lose the "fair use" argument in court, every time. If your text contains content that qualifies as commentary, criticism, or research, and the excerpt is merely present for reference, then you probably have a valid fair use argument.

In other words, if your post requires the quote in order for it to be worth reading, it is going to be very difficult to convince a judge that your use is worthy of a Fair Use exemption. If your post has no value of its own, except that derived from the quote, then you're infringing copyright.

FWIW, the "two to four paragraph" concept derives from the legal principle of de minimis, and an old publishing house agreement that permitted excerpts of up to 300 words. Both have already been struck by the courts as not being applicable in modern copyright disputes.

[ProdigalJunkMail]

15. hate to say it...but...+1 n/t

[Spike89]

19. You've nailed it, good job!

The other urban legend that drives me crazy is "we didn't sell anything or make money from it". The only time money is considered in Fair Use decisions is on the plaintiff's side, i.e., did the use diminish the copyright owner's ability to profit? Giving away intellectual property is exactly the same as selling it when it comes to deciding if copyright was violated.

Finally, the Web, e-mail, print, chiseled in stone, it doesn't matter--copying copyrighted material and distributing it in these (or any format) is a violation.

[csziggy]

35. Very often the posts with little content other than a sample of text

And a link to the original article will INCREASE the traffic to the copyright owner's site. So that does not "diminish the copyright owner's ability to profit." Rather it can significantly increase their ability to profit.

I can remember the "Slashdot effect" when a short article on Slashdot and links to sites would crash sites that caught peoples' attention. I do not remember any of those site owners suing Slashdot for the increased traffic or for copyright violations.

[Xithras]

41. Slashdot does not, and never has, posted that way.

I'm sure you could dig out one or two examples, but Slshdot's posting policy since the 1990's is that they only post new text, and not wholesale excerpts from the target article. You can go over there right now and look for yourself. Every article posted is a custom paraphrasing of the target content. Except for brief quotes, it's all new content. If you submit an article to Slashdot that is simply an excerpt of another sites content, they'll turn it down every single time. If it's cool enough, they might write their own summary and post it themselves, but they don't do any wholesale duplication. I don't remember if it was CmdrTaco or one of the other mods, but many years ago one of them made the statement that they expected Slashdot readers to be intelligent enough to write their own summaries, instead of just copying someone elses content.

Slashdot is actually an example of the RIGHT way to link outside news content. If DU had the same requirements as Slashdot, infringement wouldn't even be a discussion.

[csziggy]

46. You are right - but still, providing a link can drive traffic to a site

From now on, my rules for myself will be:
1. No quotes, just a synopsis or paraphrase the content of a link
2. Never, EVER, EVER link, mention or discuss a site with "right" in their name or connected to right wing organizations.

This will also decrease the ability to use quotes and therefore links during discussions to bolster points of view. And I am afraid that will lower the level of intelligent discussion here. Chances are, no matter how interesting I find an article, think it might be to DUers, or how relevant it might be to a discussion, I will probably no longer link to or mention it. I do not want DU to be exposed to the threat of lawsuits!

[Hugabear]

23. Same thing goes for music

I used to hold to the mistaken notion that you could sample up to 30 seconds of copyrighted music before you had to get permission. I've even heard people in radio say this. Turns out that's flat out wrong. I can't remember exactly what case it was, but there was a case where a judge ruled that sampling a mere three notes from a song constituted a copyright violation!

[lumberjack_jeff]

25. I disagree

Not from the perspective of "legal realities" (in which I defer to your expertise) but from the perspective of what's right.

"Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work."

The posting of an excerpt of a copyrighted work in this context was clearly for the purpose of news reporting and the solicitation of comment. Also, there's no negative impact of the potential market.

The whole point of a discussion board post is the solicitation of commentary, and it isn't intended to stand alone.

If I were arguing the defense of this case (and I think there's a good public policy reason to do so) I'd ask the jury to look at the intent behind, and good faith effort to comply with fair use.

[npk]

32. Except DU makes a profit off of people coming to this site and reading

Copyrighted material. All those advertisements generate money for DU. The only thing that will save DU is that they are an LLC and are generally protected under limited liability status from what visitors to this site post.

[lumberjack_jeff]

40. It saves the admins, but not DU. n/t

[Boojatta]

28. "If your post has no value of its own, except that derived from the quote ...

... then you're infringing copyright."

What if you quote three sentences that are interesting, and that give an impression that the entire work from which the quotes are taken is probably interesting? What if you also provide information that allows people to borrow or buy a copy of the original work that you are quoting from? That would seem like free advertising, but there would not necessarily be any intellectual value in your content other than what is derived from the quotes.

[npk]

33. You have a good point

And generally you are right in saying that as long only a couple paragraphs are used and a link back to the original site is given then usually most companies don't mind. The problem lately has been that some people on DU have posted several excerpts that come from different parts of the original story. By doing this DU ends up providing all of the useful info from the original story. Then the site that actually created the story never gets visited and there advertisements never get looked at and then their overall traffic becomes less making it harder for them to charge the same rates to their advertisers because they have less traffic.

It can become a snowball effect.

[liberal N proud]

8. Hope they don't have some radical judge on this.

[snooper2]

10. Why you remove the user name from the article excerpt?

:eyes:

Not like that person did anything wrong...

[RamboLiberal]

17. I did because I don't know how the user feels

Heck I posted something from that damn paper as I'd bet others DU'ers did as well and wonder if it will end up as part of Righthaven's suit. Or if they will buy up those articles.

The poster did nothing wrong. I just feel bad that their post ended up in this suit.

[LynneSin]

12. The problem is this: I'm guessing DU will need to spend money on lawyers...

something that could have a negative impact on DU but probably not as much for Righthaven - DU is a 3 man operation whereas Righthaven is a large newspaper conglomerate.

[B Calm]

13. Does Righthaven own the Las Vegas Review-Journal?

LOL

[RamboLiberal]

18. Not as far as I know - they are in some kind of partnership

with this Steven's Media group. And now another newspaper/cable TV group has joined them. What is really even pissier is they buy the rights to the article from the Review-Journal way after the fact so they can sue on the supposed copyright infringement.

[d_r]

21. I need to get free republic to quote me

I think this is going to suck. This "Righthaven" bought the copy right of the material after it was quoted on DU. It was a set up.

[Flying Squirrel]

22. Countersue 'em

There should be some way to recoup the money we'll have to pay for lawyers on a frivolous lawsuit.

[lumberjack_jeff]

24. "we"?

It's easy to spend someone else's money.

I hope that EFF gets involved.
http://www.eff.org/

[backscatter712]

26. Where do you think a lot of money that funds DU comes from?

DU's supported at least partially by donations, so yes, the pronoun "we" is at least partially appropriate.

Our donations are going to have to pay lawyers to go into court and ask a judge to tell these copyright trolls to fuck off, instead of paying to improve the site, cover the ISP bills, upgrade to bigger servers when the current ones get bogged down, etc.

[lumberjack_jeff]

30. Once donated, it's not "our" money.

The admins need the advice of lawyers, not us.

[RamboLiberal]

44. EFF is involved and offering legal help

The Electronic Frontier Foundation is seeking to assist defendants in the Righthaven copyright troll lawsuits. Righthaven, founded in March of 2010, files hundreds of copyright infringement lawsuits on behalf of newspaper publishers against bloggers who make use of news content without permission. To that end, Righthaven searches the internet for stories and parts of stories from the newspapers that they represent. Once they find content that has been re-published, Righthaven purchases the copyright to the article and sues the owner of the blog.

Just like the US Copyright Group shakedowns, and the RIAA shakedowns of the recent past, Righthaven relies on the threat of enormous statutory damages associated with the Copyright Act to scare defendants, often individual bloggers operating non-commercial websites, into a quick settlement, reportedly ranging from two to five thousand dollars. The Righthaven lawsuits are of particular concern because they sometimes target the operators of political websites who re-publish newspaper stories, chilling political speech. Righthaven has also targeted the newspaper's source for the very articles allegedly infringed.

If you are the target for a Righthaven lawsuit in need of representation, please contact Eva Galperin. Please understand that we have a relatively small number of very hard-working attorneys, so we do not have the resources to defend everyone who asks, no matter how deserving. However, if we cannot represent you directly, we will make every effort to put you in touch with attorneys who can.

http://www.eff.org/deeplinks/2010/08/eff-seeks-righthaven-defendants

[LiberalAndProud]

27. What other websites are the object of Righthaven's attention?

It would appear, on the face of it, that this prosecution might be intended to shut down one of the few avenues that we still have available to us to disseminate information and form informed opinions.

It seems to me that generating traffic to a given website would at least have the potential of enhancing revenues. By buying copyrights after the fact, how does Righthaven demonstrate harm? Since they didn't own the copyright when the infringement occurred, how were they damaged? Is there precedent for this?

Guess we may have to up our DU contributions. I really would like to see how this would shake out in the courts.

[RamboLiberal]

45. Info on websites sued here

http://righthavenvictims.blogspot.com/

http://www.righthavenlawsuits.com/ (this is not righthaven's site).

So far 103 suits, and $104,000 estimated settlements. Besides DU

FreeRepublic, a cat blogger, Democratic party Nevada, Armed Citizen, NORML, WeHateGringos, Hepatitis C Support Project, a former DC US Attorney(have fun with that one RH), Second Amendment Sisters, Buy Dog Beds, Alex Jones, etc.

Be ROFL if all these sites banded together against RH. Strange bedfellows indeed.

[Festivito]

29. "failure to institute any proactive policies" sounds like slander.

And, truth is a defense only when the allegation is true -- not the case with DU, DU having instituted many such proactive policies.

[JoeyT]

38. I think that's taken from the papers from the filing of the lawsuit.

I don't think you can sue someone for defamation in those.

Even if you could, proactive is enough of a weasel word that it would be hard to prove they knew it was false and used it maliciously.

Of course, IANAL and all that, so I could be horribly wrong.

[DailyGrind51]

39. Now Facebook is suing to prevent the use of "book"!

If anything would motivate my decision NOT to patronize Facebook, it is their law suit against the use of the word "book" by "Teachbook.com", a community of teachers!

http://mashable.com/2010/08/25/facebook-teachbook-lawsuit/

Copyright infringement law is being abused in this case, as well as the case against DU!

Now when is REDBOOK Magazine going to file suite against Facebook, since they had prior use of the word?

[csziggy]

47. I hope the judge throws that one out and charges Facebook for

Their frivolous lawsuit.

I'd love to see Scholastic Books suing Facebook for the misuse<\b> of "book"!

[hileeopnyn8d]

49. You're hoping

that the judge throws the book at them. ;)

Sorry, I couldn't resist. What a ridiculous lawsuit, maybe Redbook can sue Facebook.