WebProNews

Tag: Fair Use

  • US Supreme Court Sides With Google Over Oracle

    US Supreme Court Sides With Google Over Oracle

    The US Supreme Court has handed Google a decisive victory in its decade-long battle with Oracle over the Android operating system (OS).

    Google made the decision early on to make Android compatible with the Java programming language and libraries. The decision was a smart move, since Java is one of the most popular programming languages, and that popularity helped jumpstart Android’s application ecosystem.

    Sun Microsystems, the original owner of Java, was supportive of Google’s decision. That changed, however, once Oracle bought Sun and the rights to Java. Oracle immediately launched legal action against Google, claiming it illegally copied the Java application programming interfaces (API).

    Google responded by claiming (correctly) that programmers use other companies’ APIs all the time to ensure their software is compatible with other software and services. As a result, Google argued that a win for Oracle would have severely damaging repercussions for the entire software development industry.

    Major companies and organizations backed Google in the fight, highlighting the existential threat to the software development community that Oracle’s case posed. If Oracle won, everything from everyday software to the Linux operating system could be under threat.

    After a decade of court battles, the Supreme Court has ruled in favor of Google, 6-2. In writing or the majority, Justice Stephen G. Breyer noted the following:

    In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law.

    The win is good news for Google, and even better news for the software industry.

  • Fair Use Prevails As Google Wins Book-Scanning Case

    So, you know that book-scanning legal battle that Google has been fighting for the past eight years against the Authors Guild? Google just won.

    In a New York court, Judge Denny Chin ruled that Google can continue its book-scanning ways because it’s fair use, being how it’s “highly transformative”. It doesn’t hurt the original market for the material, he found, noting that it has become an important tool for researchers.

    Here’s the ruling in its entirety (via GigaOm):

    Google Books ruling on fair use.pdf

    According to Chin, Google’s book search tool can lead to new income for authors, rather than depriving authors of it, as Google doesn’t sell scanned books or make whole books available.

    The judge has found what many fair use advocates have been saying for years, but now a major precedent has been set.

  • AP And Meltwater Make Up And Work Together

    The Associated Press and Meltwater, once bitter legal rivals, have decided to squash their beef, and move forward working together on new products that will benefit both parties. Both (who were suing each other) have elected to cease all litigation between them.

    Meltwater provides services to business, scanning news from around the world to help its customers track keywords and topics of interest, providing results in a search engine-like format. The Associated Press sued the company (with support from major newspaper publishers like The New York Times, Gannett and McClatchy) over copyright issues, and Meltwater sued the AP back on grounds of libel.

    In March, a judge even sided with the AP, in a ruling that could have had major implications for fair use when it comes to search engines.

    “The court’s ruling sets a dangerous precedent, and if it stands, it will make it much harder to discover information online.” said Meltwater CEO Jorn Lyseggenat the time. “It sends a chilling message not only to search engines and social networks, but also to users of those services who routinely share excerpts with others. A society is not well served by copyrights laws that are at odds with the daily habits of millions of people.”

    Internet industry organizations like the Computer and Communications Industry Association and the Electronic Frontier Foundation filed briefs in support of Meltwater. Meltwater said at the time that it would examine all future options, including an appeal of the decision.

    “We want to partner and help publishers build successful online businesses,” said Lyseggen. “Together we can make the pie bigger for everyone, but that happens through innovation, not litigation.”

    And it turns out that this is the path that has prevailed with today’s news. In fact, the two parties put out a joint announcement under the title “AP and Meltwater to collaborate on innovating new products”.

    “Combining AP’s unparalleled breadth and depth of premium text and video content with Meltwater’s deep technical expertise in analytics and proven capacity for innovation enables us to work collaboratively to develop new products and new revenue opportunities for both parties,” said Lyseggen in the announcement. “There is more to be gained by working together to develop new markets and reaching new customers than can be achieved through adversarial paths and we are eager to forge a strong relationship with AP. Content providers and technology innovators need to come together. Only through a commitment to cooperation and innovation can we increase the pie for all parties.”

    AP President and CEO Gary Pruitt added, “We are pleased with this outcome. The litigation is behind us, and we are looking forward to partnering with Meltwater in a positive and constructive relationship going forward. With Meltwater’s expertise and innovative approach to develop new products for new markets and the depth and speed of AP’s global content, we can provide customers both new and existing products focused on their needs.”

    Not much else was provided in the way of details.

    Back in April, the UK Supreme Court sided with Meltwater and the PRCA, which represents UK PR consultancies, in a similar case regarding information consumption and copyright infringement. You can take a look at that ruling here if you like.

  • Ruling In AP/Meltwater Case Could Be Trouble For Search Engines

    Search engines and fair use suffered a legal blow this week, as a judge sided with the Associated Press in its ongoing case against Meltwater, a service that scans news from around the world, and helps businesses track keywords and topics of interest.

    Essentially, Meltwater’s service displays content with links and snippets in a similar format to Google News and other search engines and aggregators, which is why this case could have broader industry significance.

    Last month, we saw newspapers like The New York Times, Gannet and McClatchy get on board with the AP.

    Mike Masnick at TechDirt, who shares the court document, highlights a section where the court says:

    “Next, Meltwater argues that the extent of its copying is justified because its purpose is to serve as a search engine. But, Meltwater has failed to show that it takes only that amount of material from AP’s articles that is necessary for it to function as a search engine. Indeed, the evidence is compellingly to the contrary.”

    Masnick writes that the court “seems to think it knows how to run a search engine,” adding, “I’m curious. What is ‘the amount necessary to function as a search engine?’ One might reasonably suggest that a search engine would be wise to index everything. Yet the court here seems to be suggesting otherwise. I’m curious how many search engines the judge has built.”

    “Basically, Meltwater points out that what it does is no different than a search engine, and the court says (without much basis) that it doesn’t think Meltwater really is a search engine, and thus these defenses don’t apply,” he adds. “But this is extremely troubling for actual search engines, because you can take each of the pieces out and then try to apply them to a basic search engine, and you’ll find that if this ruling stands, it makes being a search engine much more difficult as well.”

    Meltwater will of course be appealing the judge’s decision. AFP quotes CEO Jorn Lyseggen as saying, “We’re disappointed by the court’s decision and we strongly disagree with it. We’re considering all of our options, but we look forward to having this decision reviewed by the Court of Appeals, which we are confident will see the case in a different way.”

  • German Law Says Google Can Use Snippets Of Certain Size, Fails To Define Size

    Google will not have to pay to use snippets of news content in Germany, according to a copyright law (pdf) that was passed in the country.

    We discussed the proposed law last year, which Google had spoken out about. At the time, it looked like, if passed, it would have required search engines and aggregators to pay to license content from publishers in order to display headlines (with links) and snippets of text.

    At the time, A Google spokesperson told WebProNews, “We don’t have any sympathy for these plans, as an ancillary copyright lacks all factual, economic, and legal foundation. And we are not alone with this opinion: The Federation of German Industries (BDI) and 28 other associations vehemently oppose an ancillary copyright for publishers. The German parliament is divided on the issue as well. For a good reason: An ancillary copyright would mean a massive damage to the German economy. It’s a threat to the freedom of information. And it would leave Germany behind internationally as a place for business.”

    “Publishers should be innovative in order to be successful,” the Googler added. “A compulsory levy for commercial internet users means cross-subsidizing publishers through other industries. This is not a sustainable solution.”

    “In difficult economic times, the Internet is thriving, generating economic gains, creating jobs and giving struggling businesses a vital lifeline,” they said. “It is important that any legislation supports, rather than hinders innovation on the internet to encourage new jobs and economic growth.”

    It appears that things went a lot better than they could have, but the law still leaves question about how much text can actually be used in a snippet. As TechDirt points out, the wording says that quotations will still have to be licensed unless they are “single words or the smallest excerpts,” without defining what “smallest excerpts” actually means.

    I guess we’ll see where it goes from here.

  • Newspapers Support AP Fight Against Meltwater

    A group of newspapers, including The New York Times, has lent its support to The Associated Press in a lawsuit against Meltwater, a company that scans news from around the world, and helps businesses track keywords and topics of interest. The service reportedly reproduces headlines and story snippets for clients, along with links to the actual stories – pretty much like a search engine.

    The TImes filed a brief with the court, calling Meltwater a “free-rider,” which engages in the “wholesale copying and redistribution” of its news reports.The brief is also endorsed by other publishers including Gannett and McClatchy (via PaidContent).

    As described on its site, Meltwater offers a product that tracks keywords, phrases, and topics in over 192,000 sources from over 190 countries and 100 languages, and monitors these sources consistently throughout the day. It searches an unlimited amount of keywords throughout the publications, and lets customers receieve daily reports at the timing and frequency of their choosing, “collated into easily digested categories,” as the company describes it.

    Interestingly, the brief paints Google News in a positive light, at least in comparison to Meltwater. The publishers claim that the rate of clickthrough is much greater with Google News and similar services than it is for Meltwater.

    TechDirt reported on the battle between the AP and Meltwater as far back as last April, saying that if the AP’s argument gains traction, it could “effectively outlaw search engines”. Mike Masnick shared this statement from Meltwater at the time:

    Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse. Through this Complaint and through other means, Plaintiff seeks to misuse its limited copyright monopoly to extend its control over the Internet search market more generally, thereby improperly expanding the protections afforded by U.S. copyright law. Among other things, AP has misused its copyright monopoly by demanding that third parties take licenses for search results, which do not require a license under U.S. copyright law, and AP has also formed a consortium (called NewsRight) with the purpose of further misusing its copyright monopoly to extract licensing fees that exceed what the law allows.

    We’ve discussed Newsright in the past.

    Meltwater has actually filed a counter-suit against the AP on the grounds of libel, and has the support of the EFF, and as Jeff John Roberts at PaidContent points out, even the Google-backed Computer and Communications Industry Association has backed Meltwater’s claim that it’s a search engine. He shares the NYT Amicus Brief:

    NYT Amicus Brief for Meltwater by

    Earlier this month, Meltwater issued a press release saying it was taking the fight to protect Internet users from unintentionally infringing copyright law.

  • Should Sites Be Forced To Pay For Linking? Harvey Weinstein Thinks So.

    Harvey Weinstein, an Oscar winning producer and prolific proponent of Obama, told Deadline that he is going to push for legislation that would force websites to pay for linking to news articles. This legislation would require news websites and blogs to pay a monitoring organization a fee for every link to an article written by a journalist.

    Should news sites, bloggers and other sites like Facebook, Twitter and Google pay for the privilege of including snippets and links to news stories? Also, should YouTube or sites that include embedded videos of movie/TV clips pay every time somebody views them?

    Give us your thoughts on this important topic that goes to the heart of the internet in the comments below.

    Weinstein said, “Journalists don’t benefit when their stories are taken, and given a link. It would be like me launching a newspaper–call it Link—where I can have the greatest journalists in the world working for me without paying them. It’s inconceivable. If BMI and ASCAP can monitor the music business, we need a BMI and an ASCAP to monitor these businesses. This will be the one legislation for our industry that I’ll press.”

    This would be part of a broader law that where a monitoring organization would also monitor the web for video clips and require websites like YouTube to pay this organization a fee for each view of a clip of a movie or television show.

    As the publisher of WebProNews and a long–time advocate of the right to link, in my opinion Weinstein’s idea would destroy the internet as we know it today. The internet is based on the idea of linking, that’s why it was originally referred to as the World Wide Web! If you make publications, blogs, Google, Twitter and Facebook pay for linking to a news story, how many of them would still do it. The answer is none.

    Weinstein may think he’s only talking about making news linking giants like Google News pay, but laws against free linking could not just apply to them. His proposed legislation would also have to apply to Reddit, Stumbleupon, Facebook, Twitter and news publishers and bloggers who routinely republish snippets of news articles with links to the original. Many of these sites also inbed video clips as well.

    Weinstein challenges the assertion by publishers that linking and taking small snippets of articles is not stealing content but is actually promoting the content. Weinstein equates linking and publishing as one and the same. Weinstein also told Deadline, “When it comes to journalists and journalism, I’m with you. It is important they get paid for good work, and wrong that others just take it, with a link.”.

    Since most articles have numerous social buttons encouraging “sharing” their articles via social media sites like Facebook and Twitter, you would think it would be obvious to Weinstein that publishers and journalists want their stories to be linked to. The definition of going viral is mass sharing on social media sites which pushes huge numbers of people to a journalist article if he is so lucky. Linking drives traffic to an article which theoretically can then be monitized by the publisher. If the publisher doesn’t want the traffic he can put up a firewall login and charge visitors to read the sites content.

    If a news site like Deadline doesn’t want its articles linked to then it shouldn’t publish them on a linking platform called the Web. Weinstein may be surprised to learn that Deadline and most news sites are quite happy that their articles get free traffic driven by links!

    Just like the music industry, which has in the past sued the parents of kids who downloaded music without paying for it, Weinstein proposes that those linking to content should also have to pay up. He wants to do it a bit more tactifully than the RIAA, but still wants to collect nonetheless. His idea I presume is to first change the definition of fair use which is permitted per U.S. and many international copyright laws, where a website can take snippets of content and reuse it to a certain extent.

    Theoretically, considering Weinstein’s personal connection with Obama, he could persuade the President to tighten this definition via some minor changes in regulations and rules and bypass Congress. The definition of fair use as written in U.S. copyright laws is vague and could easily be redefined via regulation. This is a scary proposition considering that linking and discussing news articles is integral to free speech.

    Once fair use is redefined to allow copyright holders the ability to charge websites a retroactive fee for each time a visitor viewed a news summary and link, that’s when a new organization similar to BMI would emerge to ensure that journalists are paid for their work. BMI has people going into businesses, such as bars and restaurants, all around the country looking to see if music is being played without their license. When it catches a business playing unauthorized music it forces them to pay based on a variety of factors such as number of seats in a restaurant and number of songs played.

    If a bar doesn’t join BMI and agree to pay a monthly fee up front, then often BMI will sue for huge amounts. For instance, one restaurant in North Carolina was order by a court to pay the BMI $30,450 for playing just four unauthorized songs.

    This is what Weinstein wants for publishers and writers of news content! If you are a blogger that makes a small amount of money from ads and you include a snippet from a news article in your story you could be sued if you didn’t already agree to a monthly payment.

    For Facebook, Google and Twitter the ramifications of this kind of heavy handed legislation could be huge. They are the YouTube of written content since so many of us share snippets and links via them. If sites like these need to license links with a BMI type organization, it’s likely that they would just eliminate news links and snippets altogether which would change the web forever… don’t you think?

  • Google Book Scanning Legal Saga Continues

    Last month, Google announced that after seven years of litigation, the company finally reached a settlement with the Association of American Publishers regarding book scanning. The saga, however, is not over yet.

    On Friday, Google filed a brief in New York, in an effort to prevent authors from suing with class action status, as the Authors Guild is reportedly still seeking $750 per book. PaidContent’s Jeff Roberts shares the legal document:

    Google Appeal Brief on Cert

    Essentially, Google sees its whole Library Project as fair use, and believes many authors that would be included in a class action suit actually benefit from the project. With this in mind, Google feels class action status would prevent it from being able to defend itself on a case-by-case basis, which would be necessary for making its point.

    Here’s a snippet from the document:

    “Plaintiffs claim that Google Books’ scanning and snippet display of their work infringes their copyrights and seek to represent a class of authors in a suit to stop the project and to recover statutory damages. Google’s principal defense – the central issue in this litigation – is that the project is fair use: Google’s uses are ‘transformative because they do not ‘supersede’ the books but rather ‘add something new,’ a greatly improved way of finding them…The transformative nature of Google Books and the fact that, as a general matter, it makes books more accessible, more likely to be read and cited, and more likely to be sold render the entire project fair use…(holiding that digitization fo books for use in libraries’ online full-text search index is fair use because the use is transformative and causes non-speculative market harm). But if the district court rejects the contention that the entire project is fair use, Google is also entitled to present its fair use defense as to uses of individual works, and the court must evaluate Google’s particular uses of each of a wide variety of books.”

    And the saga continues…

  • In Case You Were Wondering, Quoting Isn’t Duplicate Content [Matt Cutts]

    Google’s Matt Cutts has put out his latest Webmaster Help video. This time he takes on a pretty classic topic – duplicate content. There’s not much here that any industry veterans will find to be of particular interest, but he is answering a user-submitted question, so clearly there are people out there unsure of Google’s take on quoting other sources. The question is as follows:

    Correct quotations in Google. How can you quote correctly from different sources without getting penalized for duplicated content? Is it possible to quote and refer to the source?

    “You’re a regular blogger, and you just want to quote an excerpt – you know, some author you like or some other blogger who has good insight – just put that in a blockquote, include a link to the original source, and you’re in pretty good shape,” says Cutts. “If that’s the sort of thing that you’re doing, I would never worry about getting dinged by duplicate content. We do have good ways of detecting that sort of thing without any sort of issue at all.”

    “If, however, your idea of quoting is including an entire article from some other site, or maybe even multiple articles, and you’re not doing any original content yourself, then that can affect the reputation of how we view your site,” he adds.

    Basically, as long as you are adding some kind of value and perspective to what you are quoting, you’re going to be as far as Google is concerned.

    “Those sorts of things are completely legitimate and absolutely fine,” Cutts says. “I wouldn’t worry about that.

    So, if you’re quoting (and linking) rather than scraping, you’re probably okay. You may not want to go overboard on how much text you’re actually quoting from a source, however. Otherwise, you’re liable to be run into trouble with the source itself.

  • Google Adds Copyright Removal Notices To Its Search Algorithm

    Google announced a new change to its search algorithm today. Starting next week, the search engine will begin taking into account the number of valid copyright removal notices in rankings.

    That is the number of valid notices Google receives itself. This should get interesting.

    “Sites with high numbers of removal notices may appear lower in our results,” says Google SVP, Engineering, Amit Singhal. “This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.”

    “Since we re-booted our copyright removals over two years ago, we’ve been given much more data by copyright owners about infringing content online,” Singhal adds. “In fact, we’re now receiving and processing more copyright removal notices every day than we did in all of 2009—more than 4.3 million URLs in the last 30 days alone. We will now be using this data as a signal in our search rankings.”

    “Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law,” Singhal notes. “So while this new signal will influence the ranking of some search results, we won’t be removing any pages from search results unless we receive a valid copyright removal notice from the rights owner.”

    Google says it will continue to provide “counter notice” tools that people can use, when they believe their content has been wrongfully removed, so they can get it reinstated.

    More reconsideration request-like things to file. Why do I get the feeling that fair use is going to be challenged more than ever?

    Google says it will continue to be transparent about copyright removals. Speaking of transparency, Google was putting out monthly lists of algorithm changes in an effort to be more transparent, but seems to have fallen behind on that, despite the occasional one-off announcement such as this one.

  • The Government Is Putting Fair Use In Danger

    Fair use – what do those two words mean to you? If you’ve been following copyright law at all lately, you probably have heard the term thrown around a few times. It’s considered by many to be the most important feature in copyright law, so why is it always under attack?

    It would be unfair to say that fair use is directly under attack. Even the worst Hollywood executives understand fair use and do nothing to directly impede it. What bills and treaties like SOPA, PIPA and ACTA did was weaken fair use to a point where it didn’t matter anymore. Thankfully, those three laws were killed before they could change everything for the worst. Unfortunately, the most secretive treaty of all – TPP – just revealed its intentions for fair use, and it’s not good.

    Is fair use a concern to you? Are exceptions to copyright law something worth protecting? Let us know in the comments.

    Before we get into that though, it’s important to understand why fair use is so important. As an example, here’s a YouTube parody video based on the popular video game, Skyrim:

    If you’re not aware, this video contains a lot of copyrighted content from the game’s developers. That content can not be used without permission from the original copyright owner under normal conditions. Under fair use, it’s totally legal and encouraged. You see, fair use is an exception in copyright law that allows people to use copyrighted materials if the content in question is a non-commercial parody or uses the content for criticism, commentary or education.

    YouTube is actually the perfect example of fair use. The entire Web site is pretty much dedicated to it with thousands of video creators using other people’s works in ways that fall under fair use protections. The young girl singing her favorite Justin Bieber song into a camera is fair use. The political commentator pulling clips from CNN and Fox News to make a point also falls under fair use.

    The importance of fair use can not be understated. That’s why the recent leak from the fair use section of TPP has proponents so concerned. After promising that the revised TPP would contain strong fair use protections, the text of the bill actually restricts fair use. Here’s the text of the treaty acquired by KEI Online:

    1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

    2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

    As TechDirt points out, the leaked section on fair use actually does nothing to defend fair use or increase its reach. It pulls the text from the three step test that was introduced to the Bernes Convention in 1971. Here’s the text from the Berne’s Convention treaty:

    It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

    While the actual text doesn’t seem all that bad, it’s the interpretation that counts. When you leave the legality of fair use up to “not unreasonably prejudice the legitimate interests of the author,” things are going to get messy. The problem is further compounded by a Supreme Court ruling in Campbell v. Acuff-Rose Music that put the burden of proving fair use on the defendant. It’s so much easier to prove that a work is copyright infringing then to prove that it’s fair use. Thankfully, in the aforementioned case, the defendants were able to prove that their work was valid under fair use. One victory does not mean that all will be like that, and the rules of TPP make it harder for people to prove fair use.

    What’s interesting is that only the United States and Australia are behind these excessive measures. TPP is being debated and written by a number of countries in the Pacific, but only the U.S. and Australia are behind the worst parts. In fact, countries like Brazil, Chile, Malaysia and Vietnam want to incorporate strong consumer protections into TPP that would strengthen fair use and allow consumers to own their digital content.

    [NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

    Do you think TPP should strengthen its fair use clause? Or are the current protections enough? Let us know in the comments.

    Earlier, I used a Skyrim parody video to illustrate fair use. Unfortunately, we live in a world where real world examples of fair use and essential freedom abuses are easy to come by. We recently reported on a YouTube video being taken down due to copyright violation notices from CBS and the United States Department of Homeland Security. The main concern here is that the video, which only contains the ramblings of a conspiracy theorist, was taken down by a brach of the government.

    The secondary concern is that the video falls under fair use. Even if it was the insane ramblings of a conspiracy theorist; he was using copyrighted content, a Sky News broadcast in this case, to provide commentary on world events. Such a case falls under fair use and copyright holders should know that. While there’s something to be said on how YouTube gives into copyright pressure too easily, it would only get worse if fair use was restricted.

    While the changes to fair use are bad enough, we still don’t know the extent of the damage. TPP’s secretive nature has led to it being one of the more problematic treaties of our time. Fortunately, things can change for the better. If Sen. Ron Wyden has his way, TPP would be open for debate in Congress and among the citizenry. That’s really all we can ask for.

    Do you think fair use is in danger from TPP? Or are advocacy groups blowing it out of proportion? Let us know in the comments.

  • South Park Cites Fair Use, Wins “What What (In The Butt)” Infringement Case

    According to a ruling from the 7th U.S. circuit Court of Appeals, Butters is not a copyright infringer.

    The court upheld a lower court decision that ruled Viacom’s Comedy Partners were correct in their fair use defense concerning a 2008 South Park episode that lampooned a classic viral video from 2007 – Samwell’s “What What (In The Butt), which currently sits at over 47 million views.

    The lower court said that South Park’s version featuring the character Butters made “transformative” use of the original by somehow doing “the seemingly impossible — making the ‘WWITB’ video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits,” according to The Hollywood Reporter.

    Brownmark Films, owners of the original What What (In The Butt) video claimed that the lower court had no right to consider a fair-use defense and throw out the case before a trial. The appeals court sided with the lower court.

    The crux of the decision rests on the fact that Brownmark cannot now oppose the claim of fair use, and even if they could they would fail because South Park’s version is a clear parody that “comments” on the original:

    This matter is simple because Brownmark, in response to SPDS’s motion, did not address fair use as applied to the WWITB videos, and instead insisted that the court could not consider the matter at a 12(b)(6) stage. Since Brownmark never opposed SPDS’s fair use argument in the dis tric t court , we conside r the argument waived.

    However, even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a10 No. 11-2620
    trial. When the two works in this case are viewed side-byside, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of
    certain YouTube videos.

    One of the big things, long-term, that comes from this decision is that it affirms that it is possible to use the fair-use defense to get the case thrown out in the early stages of the suit.

    When all relevant facts are presented, the court may properly dismiss a case before discovery…

    Despite Brownmark’s assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of WWITB and the episode at issue.

    Basically, all the court needed to see was the two videos side by side and they could make a decision. It was that obvious.

    I mean, take a look for yourself:

    Pretty open and shut from my point of view. If nothing else, these legal proceedings were worth it just to see What What (In The Butt) slip into the official record, abbreviated as “WWITB.”

  • Perfect 10 Sues Tumblr

    A porn company called Perfect 10 recently sued microblogging platform Tumblr for copyright infringement almost five years to the day of the social network’s inception. Tumblr, host to over 46 million blogs, is also home to a spectacular amount of pornography, and Perfect 10 claims the site facilitated the “rampant and unremedied uploading, display and distribution of Perfect 10’s copyrighted photographs.”

    Perfect 10 also asserts tat Tumblr never followed through with six requests from the Digital Millenium Copyright Act (DMCA) to remove its content from their servers, and that “Tumblr employees have posted infringing content to Tumblr servers, to help start the business, including content which infringes upon Perfect 10’s Copyrighted Works.” Safe harbor laws aren’t meant to protect content that is knowingly distributed but proprietors of a hosting site, and Perfect 10 is somewhat known for legally pursuing these sorts of instances of infringement.

    Perfect 10 first went after Google in 2004, over the search giant’s use of thumbnails owned by the porn server, prompting an examination of what sort of content falls under fair use. Google lost that case, which was eventually overturned in 2007, though Perfect 10 is back at it again, in a situation some think was bound to happen with Tumblr. Sites that host user-generated content tend to hide behind putting the blame for any sort of seedy or illegal activity on said users. Though, the case with Tumblr is a bit different – besides the fact that the case deals with headline-making pornography, something Rick Santorum wishes would just go away, Perfect 10 alleges that actual Tumblr employees had a hand in jacking their content for illegal sharing.

    As of late, Google and Facebook obliged to plainly remove user content from their social networks in India that was considered to be incendiary, and a judge in Germany has ruled that YouTube is responsible for copyrighted music that was uploaded by its users. It will be interesting to see how the case with Tumblr pans out. Perhaps new regulations will be established not only regarding fair use, but also with all the porn on the site.

  • Google Speaks Out Against Righthaven In Court

    The last time we checked in with the Righthaven saga, righthaven.com had just been sold in a domain auction, as Righthaven struggled to pay legal costs and fines.

    Now, when you go to righthaven.com, you are greeted with the image above. Any guesses as to what this is about?

    Interestingly, Google appeared in court, and spoke out against Righthaven on Friday, Vegas Inc. reports. It says:

    Righthaven, in asking the 9th Circuit to overturn Mahan, argued that in the 9th Circuit, there’s “almost a per se pronouncement against a finding of fair uses in cases of 100 percent unauthorized replication.”

    Attorneys for Google, in their brief Friday, argued that’s not true and provided a long list of court cases finding fair use, even when 100 percent of a work was copied without authorization — including in search engine search results.

    …

    “That simply is not the law, nor should it be. Indeed, adoption of any such per se rule would wreak havoc on businesses like Google, whose ability to offer innovative and useful services to the public depends on the adaptability of the fair use doctrine,” Google’s filing said.

    I’m not sure how long this is going to go on, but clearly Righthaven is not going down with a fight, as it continues to appeal cases it lost in the name of fair use, and on grounds that it’s business model itself is suspect, or in other words, has a “lack of standing”.

  • Righthaven Domain Sold In Auction

    Righthaven Domain Sold In Auction

    We recently reported that Righthaven.com was up for auction on Snapnames, and it has now sold. And not for much.

    It ended up going for $3,300. That’s unfortunate for Righthaven, seeing as how they’ve been ordered to pay about $60,000 more in court.

    For Righthaven, commonly referred to as a “copyright troll,” having to auction off its domain was rather ironic, as the “company” sought the domains of other sites in its quest for copyright infringement “justice”. As courts tended to rule on the side of fair use in these cases, things got financially worse and worse for Righthaven, which brings us to why it has let its domain go for just over three grand.

    While it’s not an incredibly high amount, especially considering the amount Righthaven owes, how much value does this domain really hold anyway?

    Is the buyer (which is unknown) looking to capitalize on that awesome brand power of the Righthaven name?

    (hat tip to DomainNameWire)

  • Righthaven Domain Now Being Auctioned

    Righthaven, which is commonly referred to as a “copyright troll,” is now having its domain name RightHaven.com auctioned off by domain auction site SnapNames, as pictured above.

    If you’re not familiar with the story, the irony here is that RightHaven itself has sought the domains of other sites, which it deemed in violation of its copyrights. For more backstory on RightHaven, see our previous coverage here.

    After losing in court a number of times (losing out to fair use), Righthaven has been unable to pay its own fines and legal fees, delaying payment to avoid bankruptcy. Earlier this month, a judge ruled for Righthaven’s copyrights to be auctioned off. On Monday, the domain name went up for auction.

    At the time of this writing, there are six bidders, and the auction goes on until January 6. There was reportedly an initial minimum bid price of $100. It’s currently at $1,300.

    Righthaven CEO Steve Gibson (along with his wife) is due in court on January 6, the same day as the auction is scheduled to end.

  • Spielberg Face, Caught on Video

    Earlier this year, the UGO.com publication wrote a post about the the legacy of the Spielberg Face, which is an homage to the Spielberg style of moviemaking, especially when he is capturing an actor’s reaction of awe or surprise.

    In UGO’s post, the Spielberg Face is described as such:

    When a character looks up and catches something unexpected, that’s the face. When a character watches something otherworldly take place in front of their eyes, that’s the face. When a character stares outward, mouth slightly agape and has a revelation that will change them forever, that’s the face.

    Considering Spielberg’s mighty list of movies — under the “Director” label, Spielberg is credited with 50 movies — there’s plenty of content to pick these faces from. Fast forward to the end of 2012, well, almost, anyway, and we find someone has taken the idea of UGO’s post and created a video highlighting the same Spielberg Face phenomenon.

    According to SlashFilm.com, the video was made by Kevin Lee of Fandor.com, and it features over nine minutes worth of various actors making the “Spielberg Face,” and it is required watching for all movie buffs, or, at least it should be:


    Oh, look! A fair use target. Of course, under SOPA, it’s doubtful this video would see the light of day, and if it did, the creator — as well as YouTube — would likely fall victim to the stipulations in the protection acts. That is, the video would be removed and there’s a good chance the Fandor site would be taken down by SOPA enforcement police.

    Another story for another day, apparently.

    As for the video itself, it’s narrated by Lee, who also provides a transcript for those who are considering adding subtitles to the video. An excerpt:

    Expressive close-ups of faces reacting to events offscreen. This is a common device in Hollywood filmmaking, perhaps due in part to Spielberg’s influence. Sometimes these shots even make explicit homage to his movies. This is not to say that Spielberg invented the technique. The expressive close-up existed as early as the days of D.W. Griffith, and has long been a staple of both international and classical Hollywood filmmaking.

    As you can see, a great deal of effort was put into the making of this video, which takes full advantage of fair use. The question is, under a SOPA-controlled Internet, would this video be available to the masses like it is now?

  • Righthaven Ordered to Pay Huge Fine

    The woes continue for Righthaven, the company designed to sue bloggers and others on the web for allegedly infringing upon the copyrights of its clients/partners.

    You can see our past coverage of the Righthaven saga here. The last time we checked in, Righthaven received a huge dose of irony, as a defendant sought Righthaven’s own assets.

    That’s because Righthaven has had a hard time coming up with the money it’s been ordered to pay. It was recently ordered to pay one fine of about $34K, in addition to various other smaller ones. But now, The Las Vegas Sun is reporting (hat tip: Ars Technica) that Righthaven has ordered to pay a much larger fine in a different case – a whopping $119,488 in attorney’s fees and legal costs. Ouch. Steve Green, writing for the publication says, this is the largest fee they’ve been ordered to pay, but will likely “be dwarfed by an upcoming award in Righthaven’s failed suit against the Democratic Underground.

    This is a case we’ve looked at in the past. Back in the summer, a Las Vegas judge dismissed it.

    In fact, Righthaven has been dealt a number of blows throughout the year, as referenced throughout that aforementioned previous coverage.

    Things are looking pretty bleak for the company that is commonly referred to around the web as the “copyright troll”.

  • Should You Have to Pay to Link?

    This isn’t about paid links in relation to search. This is about paying publications to link to their content as if you were paying to republish it.

    Do you think a publication should charge others to link to their content? Let us know in the comments.

    Central European News (CEN) is a media organization that provides various services like news, images, research, and more to various media outlets, for money.

    PressGazette’s Andrew Pugh ran an interesting story about the Huffington Post linking to sources like The Daily Mail, which had paid for content from CEN. CEN decided to send payment invoices to The Huffington Post, and the Huffington Post paid them. So then, CEN encouraged other content providers to follow their lead, and send the Huffington Post invoices as well. The thinking here is that other publications would be compensated for The Huffington Post linking to them.

    Interesting position, but as it turns out, the Huffington Post didn’t mean to pay, as was revealed in an update to Pugh’s original post. They use CEN as one of their photo providers, and do pay for those services, and mistook these invoices as being related to that. So anyone who wishes to bill the Huffington Post for linking to their content might think twice about the probability that they’ll actually receive payment.

    The real question here is: should The Huffington Post (or any site/blog) have to pay an original content creator to link to their content? Now, keep in mind: The Huffington Post LINKED to that content. It did not publish that content. It’s a link, referencing the content, not a copy of the full article.

    According to the logic expressed by CEN, as conveyed in Pugh’s piece, it’s a violation of copyright if a publication even uses the original content as a starting point. So, by this logic, for example, if Publication A was the first to report on the death of Gaddafi, it would be a violation for publications B, C, D, E, and F, to report that Publication A was in fact reporting this news. Publication B could not say, “Publication A is reporting that Gaddafi is dead, but we have yet to confirm this.”

    So, if one publication was able to get a source of their own with that information, but nobody else was able to, publications B, C, D, E, F, etc. would not even be able to mention that one publication was reporting on the death. The world would have to already be reading publication A to even know about the death, or at least reading publication G, H, I, J or K, which are paying Publication A for the rights to reprint.

    Nevermind that it’s entirely possible that Publication A is not even a service that charges publications for reprints, because it’s entirely possible that publication A could be just a blog, or even somebody’s Google+ account. News is not only reported by traditional means anymore. That’s just the way it is.

    Let’s look at one of the Huffington Post examples referenced in Pugh’s piece:

    The Huffington Post article in question

    You can see that while the piece is not an incredibly lengthy, in depth piece, it does link to five different pages to pull together its story. This is in and of itself an indication that the piece is not a total rewrite of one article, but is drawing on references from various sources (including the Huffington Post’s own content). If you actually click through to those other articles, you can also see that this is not a straight re-write of any one piece.

    As often as the law (as least in this country) has ruled on the side of fair use, I have a hard time believing Huffington Post would be legally in the wrong here, though I am not a lawyer by any means, and CEN is obviously not based in the U.S.

    It seems like CEN wants people to pay to link to their content, but if you’re paying, why wouldn’t you just post the whole article. Impeding linking would be a dangerous precedent to set on the web. If sites are required to pay every time they want to reference a piece of information, it’s bound to not only create more situations where content providers just go uncredited, but it’s also likely to stifle a lot of valuable content from being created in the first place.

    If one publication has information that is indeed new, or shares some insight that has not been expressed previously, but only makes sense in the context of another piece of information that has already been published by a different publication, they need to reference that piece. It simply doesn’t make sense to have to pay to point to freely available information, in my opinion. Feel free to disagree. That’s the way the web works. The web is based on links. Without links, it’s not a web.

    While the HuffPost piece in question may not be some hugely important piece of content, who decides where the line is?

    Where do you think the line is? Tell us what you think.

  • Righthaven Gets Taste of Irony as Defendant Seeks Assets

    The Righthaven storyline continues to get even more interesting. The company, often referred to as a “copyright troll,” first stopped filing new suits against bloggers, then reports came out that the it may even file for bankruptcy, as it was hit hard by a court order to pay over $34,000 in legal fees.

    Then, even the publisher of MediaNews Group, which employed Righthaven’s services said the whole thing was a “dumb idea”.

    For more background on the Righthaven saga, view previous coverage here.

    Now, PaidContent is reporting that the legal team of Wayne Hoehn, which was a defendant against one of Righthaven’s suits – in fact, the would be recipient of the $34K, is asking a Nevada federal judge for permission to take ownership of Righthaven’s assets.

    The irony here is that Righhaven has sought the domains of publications it deemed offenders of copyright infringement in the past.

    Jeff Roberts reports:

    In weekend filings, lawyers for Wayne Hoehn asked a Nevada federal judge for permission to seize Righthaven’s “bank accounts, real and personal property, and intangible intellectual property rights.”

    Apparently, Hoehn’s team is also trying to get the court to find Righthaven in contempt for ignoring orders to pay that money.

    Righthaven has filed over 275 suits, and if Hoehn’s team gets its way, it may have just filed its last. If things were already looking bleak for Righthaven, this doesn’t paint a much brighter picture.

  • Righthaven Strategy Called a “Dumb Idea” By Denver Post Publisher

    Righthaven’s blogger-suing (often referred to as “copyright troll”) business model might be winding down. Though still appealing past rulings, the company has stopped filing new suits (at least for the time being). They may even have to file for bankruptcy after having to pay over $34,000 in fines.

    Now even MediaNews Group, which has employed Righthaven’s services in relation to its newspapers like the Denver Post (it has about 50 of them) is saying the whole thing was a “dumb idea.”

    Wired, who interviewed CEO John Paton, quotes him as saying: “The issues about copyright are real. But the idea that you would hire someone on an — essentially — success fee to run around and sue people at will who may or may not have infringed as a way of protecting yourself … does not reflect how news is created and disseminated in the modern world….I come from the idea that it was a dumb idea from the start.”

    The publisher terminated its relationship with Righthaven in August, and Paton just assumed his new role last week, replacing Dean Singleton.

    It will be interesting to see if Righthaven’s other partners, namely Stephens Media (which publishes the Las Vegas Review Journal), follow the lead of MediaNews Group.

    Judges have been ruling on the side of fair use in recent Righthaven cases, essentially rendering the company’s services ineffective. Though the appeal process must still play out, things aren’t looking incredibly bright for the future of this copyright “protection” strategy.