Blogger Triumphs over Copyright Troll
The copyright-enforcing troll of the Las Vegas Review-Journal and (formerly) the Denver Post is smarting from a recent judgment in Colorado federal court. The court dismissed Righthaven LLC’s copyright infringement case against a blogger, saying it had no right to sue. It awarded the defendant blogger costs and attorney’s fees.
- Infringement plaintiff had no right to sue
- Adult film downloaders shamed into paying stiff license fees
- Ruling should let prudent bloggers breathe easier
Copyright Owners Getting Creative in Shaking Down Alleged Infringers
While bloggers should rejoice, this particular case is all about how copyrights are enforced and not what use bloggers can make of copyrighted material. As we wrote last year, however, the Electronic Frontier Foundation is tangling with Righthaven over both its enforcement tactics and what’s fair use of copyrighted material by bloggers.
I spoke about the enforcement and fair use issues with Stephen Kennedy, a copyright attorney in Dallas, Texas. Copyright policing has taken some interesting turns recently.
In California, a company called Digital Rights Corp. has a new and novel approach to licensing of copyrighted material. It monitors bit torrent use on behalf of copyright owners, tracks violators down through their ISPs, and sends emails offering to license (that is settle a claim of violation) for $10 a pop. The emails contain a link through which violators can pay the fee right on Digital’s website.
"The adult film industry has taken this approach to the extreme," says Kennedy. "The industry has sued thousands of persons who downloaded films illegally via bit torrents. The plaintiff copyright owners file lawsuits against anonymous defendants pending discovery of who the actual violators are. Subpoenas to ISP providers reveal the violators’ names. The plaintiffs then threaten to disclose these names in court unless the violators pay a $5,000 licensing fee. As you can guess, the violators pay up with a very high compliance rate."
Given the ingenuity and zeal with which violators are being prosecuted, I asked Kennedy what bloggers can do to keep it clean when using copyrighted material in their own works.
"Anyone running a blog or website should register it as permitted by the Digital Millennium Copyright Act (DCMA)," Kennedy responds. "Registration, plus posting the DCMA disclaimer online, will protect the operator from claims of infringement related to site visitors."
There’s no bright-line test that shows the boundaries of fair use. "Fair use is a results-oriented test," Kennedy notes. "It’s about the equities. So if the use is long on copying and short on analysis, for example, that weighs against it being protected. The court also looks at the commercial benefit the copier derives from the use."
The Righthaven model for copyright enforcement is suspect in Kennedy’s view. In it, the copyright owners assign a third party just the right to sue for infringement and keep anything recovered. "I’ve personally seen cases where non-exclusive licensees of a work were entitled to enforce the copyright, but I haven’t seen cases where a party that has no beneficial interest in a work has been allowed to sue for infringement."
The recent rulings may force the infringement mill to file for bankruptcy. Righthaven has filed an emergency appeal with a federal court in Las Vegas, warning that it may file for bankruptcy or cease operations because several courts are weighing whether their lawsuits are frivolous. So bloggers who are on the level may be relieved to know they’ll be less likely to be sued in borderline fair use situations.
Art Buono co-authors the Lawyers.com blog.
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