Copyright

NewsRight: Rest Easy, We Won't be Righthaven 2.0

Looking to make their brand “a little more memorable,” the News Licensing Group is now NewsRight – and is billing itself as an “easy rights clearinghouse for the best news reporting and original journalism on the Web.”

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Want to be the New Righthaven.com? Just Three Shopping Days Left!

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven. 

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United States v. Puerto 80 Projects, S.L.U.

Threat Type: 

Police Activity

Date: 

01/31/2011

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Puerto 80 is a solely-owned limited liability company based in Arteixo, Spain. The company operates a website entitled Roja Directa, which provides a chronological listing of sporting events with links to websites that are streaming live broadcasts of those events over the Internet. The website also operates a series of message boards and a small blog.

On January 31, 2011, an agent with the United States Department of Homeland Security, Immigration and Customs Enforcement division, filed an affidavit for a warrant to seize several domain names, including rojadirecta.org and rojadirecta.com. Using a recently-modified civil forfeiture law passed in 2008, the agent alleged that these domain names were property used for the commission of criminal copyright infringement, and thus subject to seizure. According to the United States, Roja Directa linked to websites streaming sporting events, the copyrights of which are owned by the NFL, NBA, NHL, and WWE. These organizations did not license the webcasts. This seizure was part of a larger IP enforcement campaign called Operation in Our Sites, which began in June of 2010 and continues today.

A federal magistrate judge issued a warrant for the seizure of the domain names. This order applied specifically to the URLs only, and not the servers which contain the Roja Directa website. The warrant ordered the domain name registries for the ".com" and ".org" top level domains, as well as Puerto 80's registrar for "rojadirecta.com" and "rojadirecta.org," to transfer ownership of the domain name to the United States, who then displayed a page informing the public that the domain name had been seized.

According to Puerto 80, the company attempted to negotiate with the United States for the return of the domain names, but reached no agreement. On June 13, 2011, Puerto 80 filed a petition for release of its seized property pursuant to 18 U.S.C.§ 983(f) in the United States District Court for the Southern District of New York. Puerto 80 argued that linking to other websites does not constitute criminal copyright infringement, there is no risk that evidence will be unavailable should the government decide to initiate a forfeiture proceeding, and the restriction of the expressive content of the website before an adjudication of whether the content was infringing was a prior restraint of speech. The United States filed a memorandum in opposition, arguing that the actions of Puerto 80 constituted criminal copyright infringement, to release the domain name would allow continuation of that infringement, and the domain name seizure was not a prior restraint because Roja Directa was able to move the websites to new domains housed outside of the United States.

On August 4, 2011 the district court denied Puerto 80's petition for release.The court did not find the hardship necessary for a § 983(f) dismissal, and suggested that the First Amendment arguments were best left to a motion to dismiss against the forfeiture complaint. Puerto 80 filed an appeal to the United States Court of Appeals for the Second Circuit on August 18, 2011, and shortly thereafter filed a motion for expedited appeal, which the Second Circuit granted.

Puerto 80 filed its opening brief to the Second Circuit on September 16, 2011. The United States filed a response brief on November 15, 2011. The court also accepted an amicus curiae brief from the Electronic Frontier Foundation, filed on November 22, 2011.

Puerto 80's reply brief to the government's response is due on December 6, 2011, with argument before the Second Circuit slated for the week of December 19th.

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Apple, Inc. v. Odioworks, LLC

Date: 

11/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Odioworks, LLC

Type of Party: 

Large Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California (Oakland)

Case Number: 

4:09-cv-01818

Legal Counsel: 

Abhishek Bajoria, Matthew Mickle Werdegar, Melissa Jeanne Miksch, and Michael S Kwun of Keker & Van Nest LLP; Fred von Lohmann of The Electronic Frontier Foundation

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In November 2008, Apple, Inc. threatened legal action against Odioworks, LLC, a corporation that operates public wiki site BluWiki, if Odioworks did not take down information published on BluWiki about how to use an iPod or iPhone with third-party software.   Odioworks complied with the takedown request, but filed a lawsuit on April 27, 2009, in federal district court in Oakland seeking a declaratory judgment to protect it from future threats from Apple.

After the judge rejected Apple's motion to transfer the case to the San Jose division, Apple withdrew its legal threats against BluWiki and Odioworks in July 2009.  Odioworks republished the previously removed information on BluWiki and agreed to dismiss its claims without prejudice.  The case was dismissed on August 11, 2009.

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2-Normal

CMLP Notes: 

Source: Ars Technica

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France Continues to Confuse Censorship with Civility

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

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CMLP ANNOUNCEMENT: Congratulations Andy Sellars!

The Citizen Media Law Project is extraordinarily pleased to announce that Andy Sellars, our Staff Attorney, was announced this past weekend to be the 2011 winner of the time-honored and prestigious Jan Jancin Award!

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Can AP Apply a 99-Cent-Song Business Model to the News?

Is it possible to create a culture for licensing news?

This is the question at the heart of a new project begun by The Associated Press, announced last April by AP CEO Tom Curley. Called The News Licensing Group, the AP, with its membership, has created a separate company to explore how tagged content can not only be tracked but also monetized.

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Al Jazeera's Laudable Embrace of Creative Commons

Last week the Online News Association's annual conference came to Boston.  Naturally, many prominent news organizations showed up, tchotchkes in tow, to woo attendees – including Reuters, MSNBC, NPR, and CNN among many others.

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Oh Tenenbaum - First Circuit Rules That Consumers and Pirates Subject to High Sanctions Under Copyright Act

The draconian penalties for illegal downloaders under the U.S. Copyright Act were intended not just for commercial pirates, but for consumer-level infringers, the First Circuit ruled last week.

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Righthaven's Copyright Trolling is a Bankrupt Idea

It’s been several months since we last checked up on Righthaven.  How is everybody’s favorite copyright troll doing?

Well, they might be going bankrupt:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday [September 9, 2011] it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

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Newport Television, LLC v. Free Press

Date: 

07/01/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

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Barclays Capital v. TheFlyOnTheWall.com

Date: 

06/26/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

TheFlyOnTheWall.com, Inc.

Type of Party: 

Large Organization

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Southern District of New York

Case Number: 

1:06-cv-04908-DLC

Verdict or Settlement Amount: 

$12,750.00

Legal Counsel: 

Glenn F. Ostrager, Joshua S. Broitman: Ostrager Chong Flaherty & Broitman P.C.

Publication Medium: 

Website

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Status: 

Concluded

Disposition: 

Verdict (defendant)

Description: 

TheFlyOnTheWall.com is, according to its website,  a subscription-based investment-news service that "filter[s] through market information" to assist investors. In mid-2006, a group of investment firms brought suit against FOTW over the latter's use of the firms' investment research and recommendations. FOTW republished (sometimes nearly verbatim) various recommendations and reports created by the investment banks, charging a subscription fee for access to the collated information.

The firms brought suit against FOTW, alleging both copyright infringement (for the reports copied nearly verbatim) and "hot news" misappropriation (for content that contained the substance of the firms' recommendations but did not copy the text). FOTW eventually dropped its challenge to the copyright claims, and the firms were awarded a total of $12,750 in statutory damages and an injunction against further infringement (plus pre-judgment interest and some attorneys' fees).

The remaining question, once the copyright claims were decided, involved New York's recognition of a claim for "hot news" misappropriation and whether or not such a claim is preempted by federal copyright law.  Notably, FOTW voluntarily waived its First Amendment defense to the "hot news" claim.  The trial court eventually ruled that there was no preemption, found (in a bench trial) for the firms, and permanently enjoined FOTW from reporting the firms' recommendations for a period between 30 minutes and 2 hours each morning.

On June 20, 2011, the Second Circuit reversed and vacated the permanent injunction. The Court ruled that the firms' "hot news" claims were in fact preempted by federal copyright law but only on the facts of the case, holding that the record below did not support a finding that there was an "extra element" of FOTW's conduct that would allow New York state law to punish that conduct without running afoul of preemption.  Specifically, the Second Circuit held that FOTW did not "free-ride" on the firms' work, because it was conducting a separate function -- collating and gathering the firms' recommendations -- at its own expense.  Critically, the Court found that the firms were not reporting the news when they announced their recommendations; rather, the Firms were creating the news and FOTW was doing the separate work of breaking that news. A concurrence argued that FOTW was not in direct competition with the firms. 

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Righthaven LLC v. BuzzFeed, Inc.

Threat Type: 

Lawsuit

Date: 

03/30/2011

Party Receiving Legal Threat: 

BuzzFeed, Inc; Gavin Laessig; Jonah Peretti

Type of Party: 

Media Company

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:11-cv-00811

Legal Counsel: 

Kathryn Reed DeBord; Peter John Korneffel, Jr.

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company, filed a copyright infringement lawsuit in the U.S. District Court for the District of Colorado against BuzzFeed, Inc. (the operator of an internet news website), Jonah Peretti (the founder and CEO of BuzzFeed and the registrant of the domain name buzzfeed.com), and Gavin Laessig (an employee of BuzzFeed).  Righthaven alleges that the defendants reposted on the BuzzFeed website, without permission, a photograph of a TSA agent performing an enhanced pat-down check that was originally published in The  Denver Post.  In addition to seeking monetary damages, Righthaven has demanded that the court compel BuzzFeed’s domain name registrar to transfer control of the buzzfeed.com domain to Righthaven.

Defendants BuzzFeed and Peretti answered the complaint, denying Righthaven’s claims of copyright infringement and asserting numerous affirmative defenses to the complaint (including challenging Righthaven’s ownership of the copyright in the photo, claiming copyright abuse, asserting a lack of personal jurisdiction over the defendants and a lack of proper venue in Colorado, and objecting to transfer of the buzzfeed.com domain name as a remedy beyond the scope of the Copyright Act).  BuzzFeed and Mr. Peretti further asserted that valid service had not been made on the third defendant, Mr. Laessig.

Defendants BuzzFeed and Peretti also filed a class action counterclaim against Righthaven based upon its filing suit for copyright infringement in at least 275 cases, primarily in Nevada and Colorado.  The counterclaim seeks a declaratory judgment that the class/counterclaim plaintiffs’ use of the alleged copyrighted works was fair use and an injunction against Righthaven filing additional copyright lawsuits.  The counterclaim also includes claims for abuse of process and violation of Colorado’s unfair and deceptive trade practices statute, C.R.S. § 6-1-105, based upon Righthaven’s litigation history.  Specifically, the counterclaim alleges that Righthaven (1) failed to send the class/counterclaim plaintiffs any notice and takedown communication prior to filing suit, (2) sought relief to which it knew it was not entitled by seeking locking and transfer of domain names, (3) asserted ownership of copyrights that it did not own, (4) failed to investigate or adequately allege personal jurisdiction over the class plaintiffs, (5) failed to investigate whether the challenged uses of the copyrights were fair use, and (6) abused the legal system by using the threat of statutory damages and injunctive relief to extract monetary settlements.

Update:

5/19/2011:  After the filing of BuzzFeed’s answer and counterclaim, the court stayed the action (as well as all other Righthaven litigation in the District of Colorado) in response to a motion to dismiss in another Righthaven case in the district (Righthaven LLC v. Wolf et al., No. 1:2011-cv-00830) raising questions of subject matter jurisdiction.

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Debugging Legislation: PROTECT IP

There's more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: "Eliminating the Financial Incentive to Steal Intellectual Property Online" (Sec. 4) gives way to "Voluntary action for Taking Action Against Websites Stealing American Intellectual Property" (Sec. 5).

Techdirt gives a good overview of the bill, so I'll just pick some details:

  • Infringing activities. In defining "infringing activities," the draft explicitly includes circumvention devices ("offering goods or services in violation of section 1201 of title 17"), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of "no [substantial/significant] use other than ...." Substantial could incorporate the "merely capable of substantial non-infringing use" test of Betamax.
  • Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over "nondomestic domain names", including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) "an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures ... to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site."

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The Sound of Fury in Recent Righthaven Cases

Two legal developments in Nevada and Colorado last week make Righthaven (previous post here) a textbook example of how not to win a lawsuit.  In their cases against the Democratic Underground (of which details can be found in the CMLP legal threats database) and Brian Hill (whose case filings are available on Scribd), Righthaven appears to be suing without owning the copyright and picking a fight with the judge handling dozens of still-pending cases, respectively.

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Righthaven LLC v. Vote For The Worst, LLC

Threat Type: 

Lawsuit

Date: 

06/28/2010

Party Receiving Legal Threat: 

Vote For The Worst, LLC,, Nathan Palmer, David J. Della Terza

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-01045

Legal Counsel: 

Marc Randazza and James M DeVoy of Randazza Legal Group; John L. Krieger and Nikkya G. Williams of Lewis and Roca LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On June 28, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website company Vote for the Worst ("VFTW") LLC and two of its managers, David Della Terza and Nathan Palmer.  Righthaven sued VFTW after a user posted a Las Vegas Review-Journal article on the site's forum.

On August 16, 2010, VFTW moved to dismiss.  VFTW argued that the court lacked personal jurisdiction because none of the defendants are residents of or have sufficient contacts with Nevada.  The court denied VFTW's motion on March 30, 2011.

VFTW filed an answer on April 13, 2011, asserting defenses of fair use, lack of personal and subject matter jurisdiction, and innocent infringement. 

Update:

4/17/2011 - VFTW filed a motion to dismiss for lack of subject matter jurisdiction, based on the recently-unsealed agreement that purported to assign Stephens Media's copyright in various content to Righthaven.  Hoehn argued that the agreement, which was unsealed by the court hearing Righthaven LLC v. Democratic Underground LLC, shows that Righthaven lacks the standing to sue because Righthaven was not the exclusive holder of any rights in the copyrighted material at issue in the lawsuit.  Under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005), a plaintiff must be the exclusive holder in a copyright to sue.  Under the unsealed agreement, Stephens Media retained exclusive rights in the works, thereby preventing Righthaven from being able to sue on the copyright.

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The (Statutory) Damage is Done

A few days ago, I attended oral arguments before the First Circuit Court of Appeals in the case of Joel Tenenbaum, a graduate student being sued by various record labels for sharing music files via a peer-to-peer service over the Internet (Sony v. Tenenbaum, docket available here).  I’ve already written up some of my thoughts about the possible outcome of Joel’s lawsuit over at my regular blog, Legally Sociable.

Here, I’d like to expand my analysis somewhat to cover Tenenbaum’s broader implications.  Many CMLP blog readers may be asking themselves, “So what?  What could swapping MP3’s on the Internet possibly have to do with the activities of citizen journalists?”

Under an ideal intellectual property regime, the answer would doubtless be “very little.”  Non-commercial use of music for personal entertainment bears little logical resemblance to news reporting, analysis, and advocacy.  One might reasonably imagine that IP law treats P2P music downloading differently from blogging about the news.

Unfortunately, in the real world, the law ends up treating blogging almost exactly like file sharing because both activities primarily fall within the purview of copyright law.  Moreover, 17 U.S.C. § 504(c) provides extremely flexible statutory penalties “as the court considers just.”

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Righthaven LLC v. Sumner

Threat Type: 

Lawsuit

Date: 

01/27/2011

Party Receiving Legal Threat: 

William Sumner, DailyKix.com

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court for the District of Colorado

Case Number: 

1:11-cv-00222

Legal Counsel: 

Andrew J. Contiguglia, Contiguglia/Fazzone P.C.; Marc Randazza, Randazza Legal Group; Charles Van Horn, Berman Fink Van Horn

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against William Sumner and DailyKix.com.  Righthaven alleged that Sumner used a photo copied from the Denver Post without permission on the social media aggregator website DailyKix.com.

Sumner filed a motion to dismiss for lack of personal jurisdiction in response.   Sumner, a Georgia resident, argued that the court lacks general jurisdiction over him because neither he nor his website, which resides on a server in Kansas, has continuous and systematic contacts with Colorado.  And Sumner argued that the court lacks specific jurisdiction over him because he never purposefully availed himself of operating in Colorado.  Sumner noted that the allegedly infringing photograph was auto-populated by the DailyKix's automatic aggregation algorithyms, and not by any intentional activity on his part.

Sumner also argued that DailyKix.com, as a website without any sort of associated business entity, should be dismissed as an improper defendant because it lacks the capacity to be sued.

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Is Righthaven Harming the News Industry?

Righthaven, a copyright-enforcement entity that sues first and asks questions later, comes up a lot here at the CMLP, both on the blog and in the legal threats database.  As a recent profile on CNN.com illustrates, Righthaven’s founder Steve Gibson thinks he is simply enforcing content owners’ rights within the digital landscape:

What really is happening here is a realization of the infringement community that the days of merely receiving a takedown letter are over, and that people will have a means to protect their ownership rights. Like you're taught in grammar school, it's not right to take someone else's work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't make it right.

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