Implicit license

A speaker the other day said something curious, and he repeated it. Several times throughout his talk, he said that most of the information he was giving us is available free of charge on our web site. It’s curious, because his need to say it strays from the model we’ve developed of the worldwide web. That he said it — and not once, but several times — made him seem old fashioned, almost as thought he’d told us to send a self-addressed stamped envelope to get a copy of his presentation.

The part that’s out of place is free of charge, because we assume that now. Of course it’s free of charge: it’s on your web site. The web is a place full of free information, and we take that as the default situation.

Not everything there is free, to be sure. Lots of journals put the papers they publish behind paywalls, and some magazines and newspapers demand subscriptions for ready access to their material. But we mention that when it shows up, because paying is now the exception. We assume information on the web is free unless we’re told otherwise.

On the other hand, we do expect that the information remains the property of those we got it from, unless they say otherwise, at least some of us do. We wouldn’t use someone else’s words without attribution, someone else’s research, someone else’s design, without permission. We might even expect to pay for the use, depending upon what it is we’re using, and for what purpose. And we have lots of discussions about fair use in the process.

But what, exactly, is our fair use of material that’s provided free?

It’s a difficult question, and one with no clear answer. The U.S. fair use doctrine isn’t well defined, and courts take it to mean different things in different situations and at different times. Even cases that are obvious might not be so, depending upon who’s making the judgment. Associated Press tried, to derision and laughter from many professional and amateur bloggers, to limit fair use of their material to fewer than five words. They later said that wasn’t what they’d meant, maybe.

Righthaven, on the other hand, decided not to make any definitions. They just made lawsuits:

In a strategic campaign that is attracting growing interest nationwide in legal and media circles, Righthaven — without warning — has sued at least 86 website owners in federal court in Las Vegas since March for copyright infringement.

[...]

But from the get-go, Righthaven hits copyright violators with lawsuits seeking $75,000 in damages and forfeiture of their website domain names.

Righthaven’s legal initiative has critics calling it a frivolous-lawsuit-and-shakedown campaign aimed not at gaining justice for Righthaven, but at putting money in its pockets — charges denied by Righthaven and its entrepreneurial CEO, Las Vegas attorney Steven Gibson.

[...]

Righthaven’s procedure has been to troll to find an infringement of an R-J copyright to a specific story. It then buys the copyright for that story from the R-J’s owner, Stephens Media LLC, and afterward sues the infringer.

Buying the copyright is an important step because it allows Righthaven to seek statutory damages. (Some of the defendants are arguing that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement.)

These are clearly predatory tactics: a good-faith approach, if one really thinks a non-commercial user such as a blogger has overstepped the fair-use line, would be to ask them to take down the offending material. Starting with a large lawsuit is clearly just a way to monetize things.

Now the Electronic Frontier Foundation is calling them on it, having filed a countersuit that claims copyright fraud:

The owner of the Las Vegas Review-Journal has for the first time been hit with a counterclaim over its online copyright infringement lawsuit campaign, with attorneys for the Electronic Frontier Foundation accusing the newspaper of entering a sham relationship with the Review-Journal’s copyright enforcement partner Righthaven LLC — and accusing Righthaven of copyright fraud.

[...]

The Electronic Frontier Foundation (EFF) says the lawsuit campaign threatens freedom of speech on the Internet as Righthaven generally sues without first asking that infringing material be removed from websites or be replaced with links as is the standard practice in the U.S. newspaper industry.

A couple of weeks ago, Groklaw published an interesting analysis of one of the cases, where a defendant got a default judgment set aside and will be allowed to plead his case. It’s particularly interesting because this particular defendant has a situation where an entire column from the newspaper was copied — something that clearly ought to go beyond fair use. Yet the judge, in setting aside the default judgment, ruled that the planned defense is sufficiently reasonable to be heard.

The reasonability of it rests on a few points:

1. The article in question is informational, rather than creative or artistic.
2. The use was non-commercial.
3. The article was available for free from the newspaper’s web site, so financial loss to the newspaper could not be great (there might be loss of advertising revenue, resulting from fewer visits to the paper’s web site).
4. The defense claims that the newspaper gave an implicit license to use the article, by posting it freely on their web site. The judge quotes John S. Sieman, from his paper Using the Implied License to Inject Common Sense into Digital Copyright:

   As the internet has developed into more of an opt-out system, the argument has been made that only the act of sharing information from websites that actively choose to be removed from participating in the system is generally recognized as unacceptable, despite the Copyright Act being an opt-in system.

It’s that last point that’s the most interesting one, and we should follow this case to see where it goes. The defendant has only won the right to argue his case, and he could still lose in the end.