The New York Times is being sued by GateHouse Media, a publisher of mostly small, local newspapers, for copyright infringement over its linking and aggregation practices in its Boston Globe online unit.
In its lawsuit filed in U.S. District Court in Massachusetts on Monday,
Fairport, N.Y.-based GateHouse Media, which publishes more than 100
papers in Massachusetts, accuses the Times of violating copyright by
allowing its Boston Globe
online unit to copy verbatim the headlines and first sentences from
articles published on sites owned by GateHouse, including the Newton Tab.
The links, as seen on Boston.com's Newton site
for instance, lead to the original articles on the GateHouse-owned
sites, which display advertising. However the lawsuit claims GateHouse
is losing advertising revenue as a result of the linking because
readers don't see the ads on the GateHouse site's home page.
The linking also confuses readers, leading them to believe that
GateHouse endorses the linking practice, according to the lawsuit.
According Catherine Mathis, senior vice president of corporate communications at the New York Times, the linking practice is common around the web and that GateHouse Media's claim of copyright infringement does not have merit.
Many blogs and news sites like Digg aggregate hundreds and thousands of headlines from all around the web and republishes snippets of news with links back to the original source. The heart of this issue is whether the practice falls under Fair Use or not.
In a similar case last year, Google was sued by Agence France-Presse (AFP) for its practice of republishing summaries of articles in its websites as part of its Google News service. That case was settled and ended with AFP entering a licensing deal with Google.
In December of 2007, Canadians were made aware of a copyright reform bill
that was making its way in Canadian Parliament without any input from
consumers, artists, and the public in general that will make illegal
many of the creative freedoms Canadians currently enjoy and make them
criminals in the eyes of the law. The law proposed was basically a copy
of the draconian Digital Millennium Copyright Act drafted by the likes
of RIAA and MPAA and fostered upon the United States.
this law passes, it will mean that as soon as a device has any
anti-copying stuff in it (say, a Vista PC, a set-top cable box, a
console, an iPod, a Kindle, etc), it will be illegal for Canadians to
modify it, improve it, or make products that interact with it unless
they have permission from the (almost always US-based) manufacturer.
This puts the whole Canadian tech industry at the mercy of the US
industry, unable to innovate or start new businesses that interact with
the existing pool of devices and media without getting a license from
Furthermore, as reported by Canada's Globe and Mail, the law will make it illegal for consumers to remove the highly illegal Sony Rootkit Trojan from their own computers:
informed sources are getting steamed already. In his blog, copyright
lawyer and litigator Howard Knopf is predicting that the bill will “put
digital locks on our computers, cellphones, iPods, other gadgets and
tools and, ultimately, our culture,” just like the DCMA does. He goes
on to speculate that the bill would make it a copyright infringement
(as it is in the United States) to try to remove Digital Rights
Management and Technical Protection Measures from your computer, such
as the infamous Sony anti-infringing technology of a few years ago that
was based on a very dangerous hacker’s tool called a “rootkit.”
The video tackles the controversial Sony Rootkit incident, in which
Sony employs the use of hacker technology to cripple consumers'
computers (and an interesting irony, the very same technology they were
using to combat copyright infringement was "stolen" and infringed
copyrights; it seems that in their zeal to combat copyright
infringement, they were willing to violate copyrights). (View
BoingBoing's timeline of all the coverage in six parts.) Sony's actions were so odious that the State of Texas sued Sony for violating its anti-spyware laws.
Australia's biggest film and television
companies have ignited a long-simmering war with the internet sector,
lodging a lawsuit against Perth-based broadband provider iiNet seeking
damages that could run into millions of dollars.
group, which includes Warner Brother, Sony Pictures, Disney and the
Seven Network, has also left open its options of taking further legal
action against the counttry's big two broadband players, Telstra and
broad aim of the action is to stop internet users from using high-speed
connections to swap digital versions of Hollywood films like American
Gangster and Mama Mia! as well as and popular television shows such as
Heroes and Two and a Half Men. These actions breach copyright
Operating under the banner of Australian Federation Against
Copyright Theft (AFACT), this consortium of various entertainment
heavy-weights are not ruling out taking action against Telstra and
Optus, Australia's first and second largest ISPs. Considered a test case by many,
the suit is but part of a series of actions taken by AFACT against
smaller ISPs. Several small internet carriers have reported receiving
aggressive cease-and-desist letters.
"It is unfortunate that the rights holders are targeting an ISP because
under Australian law, internet service providers may generally be
considered conduits which provide carriage services, and as such are
not responsible for copyright infringements carried out by customers
using their internet service," a spokesperson for Optus said.
AFACT and its members are expecting the ISPs to carry out its
copyright enforcement and are now utilizing the state apparatus to
coerce the companies into complying.
In what is shaping up to be the most significant copyfight case in years, the Berkman Center for Internet & Society and Professor Charles Nesson of the Harvard Law School in mounting a challenge against a federal copyright law that is the heart of the Recording Industry Association of America's (RIAA) copyfascist strategy of extorting payments from music fans who share songs online.
Nesson has come to the defense of Joel Tenenbaum, a Boston University graduate student that was targeted by RIAA's many lawsuits.
Nesson argues that the Digital Theft Deterrence and Copyright
Damages Improvement Act of 1999 is unconstitutional because it
effectively lets a private group — the Recording Industry Association
of America, or RIAA — carry out civil enforcement of a criminal law. He
also says the music industry group abused the legal process by
brandishing the prospects of lengthy and costly lawsuits in an effort
to intimidate people into settling cases out of court.
the founder of Harvard's Berkman Center for Internet and Society, said
in an interview that his goal is to "turn the courts away from allowing
themselves to be used like a low-grade collection agency."
This large punitive component is not troublesome when statutory
damages are awarded for one or a few instances of illegal file-sharing. The
punitive component serves as an incentive to sue, and punishment for
breaking the law is quite normal. However, when a given punishment is
massively aggregated across many similar instances of misconduct, the
resulting penalty can become so large that it becomes grossly excessive in
relation to any legitimate interest in punishment and deterrence. As with the
large punitive damage awards that the Court has held unconstitutional in the
past decade, such a tremendous punishment violates substantive due
There are quite a few legal precedents that the courts uses to determine whether such fines violates due process, among them BMW v. Gore and TXO Production v. Alliance Resources. In BMW v. Gore, the Supreme Court ruled that the punitive damages awarded to Gore violated the Due Process Clause of the Constitution and sought to limit what the Alabama Supreme Court can reward Gore:
In our federal system, States necessarily have considerable flexibility
in determining the level of punitive damages that they will allow in
different classes of cases and in any particular case. Most States that
authorize exemplary damages afford the jury similar latitude, requiring
only that the damages awarded be reasonably necessary to vindicate the
State's legitimate interests in punishment and deterrence. Only when an award can fairly be categorized as
“grossly excessive” in relation to these interests does it enter the
zone of arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment. For that
reason, the federal excessiveness inquiry appropriately begins with an
identification of the state interests that a punitive award is designed
Despite its widespread and very public campaign of suing its under-25 customer demographic, the RIAA seemed unwilling - some would say scared - to take on Harvard. Bangeman, along with others, noted that the Cartel's attack dogs seemed to be taking on easy targets.
Bloggers attributed this "oversight" on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.
The RIAA has long abused the court system to prop up its failing business model. In true copyfascist fashion, they extort payments from their own customers through intimidation and the threat of state coercion. Private property rights are abridged when the RIAA enforces its copyright.
Related links: http://blogs.law.harvard.edu/cyberone/riaa/
Last August, the Ohio Republican Party released a campaign commercial in support of Senator John McCain's campaign for the presidency. One of the music used in the campaign commercial in a thirty-second snippet is Jackson Browne's song Running on Empty. According to Browne, a supporter of President-Elect Barrack Obama, it gave an impression that he has endorsed Senator McCain. In a lawsuit filed by Browne, Senator McCain and the Ohio Republican Party has infringed on his copyright and gave the false impression that he has endorsed the senator.
In an interview with Wired.com, Browne's attorney Larry Iser said, "Copyright derives directly from the Constitution… Someone who is running for president needs to set a good example in adherence to the laws."
The McCain campaign responded, "Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."
Not only are creativity and innovation threatened by spurious copyright-driven lawsuits like Browne's, but as we can see political speech as well. Limitations to copyright are codified in Title 17, Section 107 of the US Code, also known as the Fair Use Doctrine, allows people to create deritatives of copyrighted works without the copyright holder's consent. In a similar case, Keep Thomson Governor Comm. v. Citizens for Gallen Comm., the courts has ruled that the opposition group's use of fifteen seconds of another group's campaign music is fair usage and therefore non-infringing. Thousands of campaign videos have been produced by supporters of President-Elect Obama and Senator McCain using copyrighted music for great effect and then published on YouTube; all under fair use protections.
Browne's lawsuit will have a chilling effect on future political speech, especially his claim that Senator McCain's campaign misrepresented his views. Must fair users now take into account an artist's political beliefs when creating derivatives of their work? How reasonable is it to expect fair users to divine an artists' political belief?
The delicious irony of this is that Senator McCain has voted for increase copyright protections to detriment of fair use, the same fair use he is now invoking to defend himself against Browne's infringement claims.
Unsurprisingly, the Union Square Partnership (USP) utilized the egregious violation of basic rights that is the Digital Millennium Copyright Act (DMCA) to shut down a website parodying its own official website. Savitri Durkee, an activist concerned about preserving the character of Union Square and Union Square Park, created a website that parodied USP's redevelopment efforts in the area. In response, USP sent a DMCA takedown notice to her internet service provider claiming that her free speech infringed their copyright. Additionally, not only did they filed a copyright lawsuit against Durkee, they seek to gain control of her domain name through a claim filed with the World Intellectual Property Organization (WIPO).
In her battle to protect her abridged rights, the Electronic Frontier Foundation (EFF) has stepped in to represent Durkee against USP's baseless litigation. From the EFF:
EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.
"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil right activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."
Baseless copyright infringement claims under the DMCA is all too common as evidenced by the EFF in their comprehensive white paper, Unintended Consequences: Ten Years under the DMCA. Too often, the DMCA is used by those wishing to silence their critics. Internet service providers and content aggregators are usually quick to comply to infringement notices lest they be forced to pay excessive statutory damages to claimants. But particularly odious is USP's attempt to wrest control of Durkee's electronic property in their claim filed with the WIPO. This is copyfascism at its very abominable.
Durkee, however, is in luck. The Constitution and several landmark cases are on her side. One of the most recent case, as well as being an EFF victory, is Frankel v. Lyons. In that case, the federal courts asserted than Stuart Frankel's website parodying Barney was non-infringing speech.