Copyright Shakedowns

Dan Frosch at the New York Times has a great article about a Nevada company that is going after copyright violators very, very aggressively.

The company, Righthaven, is picking up the copyrights to work from a couple of news organizations and then scouring the web looking for illegal usage of those images and stories. Without warning, they are filing lawsuits against alleged infringers.

Now, I am not a fan of overzealous lawyers but as I guy who truly believes in copyright protections, I think I’m going to side with the lawyers here. If they have legally obtained the copyrights to these works, then they have the legal authority to protect them – and the way the law is written, that means filing lawsuits.

Some will contend that “fair use” protects them and allows them to use the work. From the U.S. Copyright Office’s web site:

One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

From my observations as a non-legal scholar, the vast majority of uses don’t fit all of those criteria. Yep – ALL. It’s not just one, you need to clear all of those in order for it to be considered for “fair use.”

The ignorance of copyright law is pretty stunning out there. From the Times:

“My reaction was, ‘Why didn’t you just contact me and ask me to take it down?’ That would have been no problem,” said Ms. (Rachel) Bjorklund, who plans to challenge the suit.

Ms. Bjorklund’s defense seems to be it’s only a problem if she gets caught. Which she did. And then she’ll take it down. That puts the burden of the law on those who it is supposed to defend. It means the victim has to take full responsibility for enforcing the law.

Imagine you own a candy store. People come in daily, choose their candy and come to the front counter to pay for it. You have a good business.

But every now and then, you have someone who comes in, pockets your candy and walks out the door. Is it your responsibility to track them down and have them return the candy – candy they’ve already probably used? Has the value of the candy been diminished?

How easily can you sell a candy bar that’s been opened and used by someone else? What value does it have?

Yeah, see – returning the candy bar has decreased its value. Running someone else’s work without their permission decreases the value of it.

Which, you know, is theft.

(Thanks to Prof. Barry Hollander for the tip on this story.)