Righthaven, a litigation factory outfit targeting bloggers for publishing excerpts from Las Vegas Review-Journal, apparently does not have the legal standing to sue for infringement as they do not even own the copyright to the content they are suing bloggers over.
From Against Monopoly:
Tom Cruise May Face Legal Action Over Hitler Globe reports that the collector who bought the famous "Hitler's globe" may sue for use of a likeness of the globe in Cruise's recent film Valkyrie, "the thriller about a real-life plot to assassinate Hitler." The article reports that in "2007, Pritikin paid $100,000 for the globe and had its likeness copyrighted to keep it from being used in propaganda by sick neo-Nazi groups." Whew, what a relief!
How is it even possible to copyright something you did not create, but purchased?
The New York Times is being sued by GateHouse Media, a publisher of mostly small, local newspapers, for copyright infringement over its linking and aggregation practices in its Boston Globe online unit.
In its lawsuit filed in U.S. District Court in Massachusetts on Monday, Fairport, N.Y.-based GateHouse Media, which publishes more than 100 papers in Massachusetts, accuses the Times of violating copyright by allowing its Boston Globe online unit to copy verbatim the headlines and first sentences from articles published on sites owned by GateHouse, including the Newton Tab.
The links, as seen on Boston.com’s Newton site for instance, lead to the original articles on the GateHouse-owned sites, which display advertising. However the lawsuit claims GateHouse is losing advertising revenue as a result of the linking because readers don’t see the ads on the GateHouse site's home page.
The linking also confuses readers, leading them to believe that GateHouse endorses the linking practice, according to the lawsuit.
According Catherine Mathis, senior vice president of corporate communications at the New York Times, the linking practice is common around the web and that GateHouse Media's claim of copyright infringement does not have merit.
Many blogs and news sites like Digg aggregate hundreds and thousands of headlines from all around the web and republishes snippets of news with links back to the original source. The heart of this issue is whether the practice falls under Fair Use or not.
In a similar case last year, Google was sued by Agence France-Presse (AFP) for its practice of republishing summaries of articles in its websites as part of its Google News service. That case was settled and ended with AFP entering a licensing deal with Google.
Cross-posted to RedStateEclectic.
Thirty-four of the biggest names in the entertainment industry has declared war on Australia's third-largest internet service provider (ISP) iiNet in a suit that claims that the broadband provider is partly responsible for its users' breach of copyright laws:
Australia's biggest film and television companies have ignited a long-simmering war with the internet sector, lodging a lawsuit against Perth-based broadband provider iiNet seeking damages that could run into millions of dollars.
The group, which includes Warner Brother, Sony Pictures, Disney and the Seven Network, has also left open its options of taking further legal action against the counttry's big two broadband players, Telstra and Optus.
The broad aim of the action is to stop internet users from using high-speed connections to swap digital versions of Hollywood films like American Gangster and Mama Mia! as well as and popular television shows such as Heroes and Two and a Half Men. These actions breach copyright regulations.
Operating under the banner of Australian Federation Against Copyright Theft (AFACT), this consortium of various entertainment heavy-weights are not ruling out taking action against Telstra and Optus, Australia's first and second largest ISPs. Considered a test case by many, the suit is but part of a series of actions taken by AFACT against smaller ISPs. Several small internet carriers have reported receiving aggressive cease-and-desist letters.
"It is unfortunate that the rights holders are targeting an ISP because under Australian law, internet service providers may generally be considered conduits which provide carriage services, and as such are not responsible for copyright infringements carried out by customers using their internet service," a spokesperson for Optus said.
AFACT and its members are expecting the ISPs to carry out its copyright enforcement and are now utilizing the state apparatus to coerce the companies into complying.
In what is shaping up to be the most significant copyfight case in years, the Berkman Center for Internet & Society and Professor Charles Nesson of the Harvard Law School in mounting a challenge against a federal copyright law that is the heart of the Recording Industry Association of America's (RIAA) copyfascist strategy of extorting payments from music fans who share songs online.
Nesson has come to the defense of Joel Tenenbaum, a Boston University graduate student that was targeted by RIAA's many lawsuits.
Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group — the Recording Industry Association of America, or RIAA — carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.
Nesson, the founder of Harvard's Berkman Center for Internet and Society, said in an interview that his goal is to "turn the courts away from allowing themselves to be used like a low-grade collection agency."
The constitutionality of the excessive fines that results from these lawsuits has been raised before:
This large punitive component is not troublesome when statutory damages are awarded for one or a few instances of illegal file-sharing. The punitive component serves as an incentive to sue, and punishment for breaking the law is quite normal. However, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. As with the large punitive damage awards that the Court has held unconstitutional in the past decade, such a tremendous punishment violates substantive due process guarantees.
There are quite a few legal precedents that the courts uses to determine whether such fines violates due process, among them BMW v. Gore and TXO Production v. Alliance Resources. In BMW v. Gore, the Supreme Court ruled that the punitive damages awarded to Gore violated the Due Process Clause of the Constitution and sought to limit what the Alabama Supreme Court can reward Gore:
In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. Only when an award can fairly be categorized as “grossly excessive” in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve.
The RIAA has been conspicuously avoiding targeting students from Harvard, due in large part to the presence of Berkman Center for Internet & Society. Alan Wexelbat of Corante's Copyfight explains:
Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling – some would say scared – to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.
Bloggers attributed this "oversight" on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.
The RIAA has long abused the court system to prop up its failing business model. In true copyfascist fashion, they extort payments from their own customers through intimidation and the threat of state coercion. Private property rights are abridged when the RIAA enforces its copyright.
Related links: http://blogs.law.harvard.edu/cyberone/riaa/
Last August, the Ohio Republican Party released a campaign commercial in support of Senator John McCain's campaign for the presidency. One of the music used in the campaign commercial in a thirty-second snippet is Jackson Browne's song Running on Empty. According to Browne, a supporter of President-Elect Barrack Obama, it gave an impression that he has endorsed Senator McCain. In a lawsuit filed by Browne, Senator McCain and the Ohio Republican Party has infringed on his copyright and gave the false impression that he has endorsed the senator.
In an interview with Wired.com, Browne's attorney Larry Iser said, "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws."
The McCain campaign responded, "Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."
Not only are creativity and innovation threatened by spurious copyright-driven lawsuits like Browne's, but as we can see political speech as well. Limitations to copyright are codified in Title 17, Section 107 of the US Code, also known as the Fair Use Doctrine, allows people to create deritatives of copyrighted works without the copyright holder's consent. In a similar case, Keep Thomson Governor Comm. v. Citizens for Gallen Comm., the courts has ruled that the opposition group's use of fifteen seconds of another group's campaign music is fair usage and therefore non-infringing. Thousands of campaign videos have been produced by supporters of President-Elect Obama and Senator McCain using copyrighted music for great effect and then published on YouTube; all under fair use protections.
Browne's lawsuit will have a chilling effect on future political speech, especially his claim that Senator McCain's campaign misrepresented his views. Must fair users now take into account an artist's political beliefs when creating derivatives of their work? How reasonable is it to expect fair users to divine an artists' political belief?
The delicious irony of this is that Senator McCain has voted for increase copyright protections to detriment of fair use, the same fair use he is now invoking to defend himself against Browne's infringement claims.
One of the hardest things to swallow for me is the concept that every single copyright infringement is somehow akin to theft. The copyright violator usually expends his own resources and utilizes his own labor to produce a product that is similar or sometimes nearly identical (a copy) to an original work. There was no illegal transfer of resources from the copyright holder to the violator. The only transfer that occurs is one of an idea or concept that is copied and made tangible. And I am of mind that ideas are not owned by anyone. People originate them, but they can never own them or gain the right to control its distribution.
Any thoughts?
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