• by Wendy Davis  @wendyndavis, August 18, 2010

A blogger sued for allegedly reposting a Las Vegas Review-Journal article has raised an argument that, if accepted, could affect a broad swath of copyright infringement cases. The blogger, Jan Klerks, who publishes the noncommercial site www.skyscrapercity.com, about urban development, argues that the newspaper granted him an implied license to republish its articles by encouraging readers to save the pieces and send them to others.

The Las Vegas Review-Journal "offered the allegedly infringed work to the world for free when it was originally published," he argues. "It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. ... Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement."

Klerks raised the argument as part of a motion to vacate a default judgment entered against him earlier this year. He says that he didn't appear in court because he wasn't properly served and that the judgment should be set aside because he has valid defenses, including an implied license.

If courts agree that the paper did create an implied license, publishers could find it more difficult to sue bloggers, or even threaten to sue them, for copyright infringement. But whether the argument will gain traction in court appears to be an open question.

"Is there an implied license here? Possibly," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

Even so, he says, it's not clear that an implied license would allow someone to copy an article to a blog, as opposed to send it to one other person via email. "The problem with implied licenses is that we never know the scope of them until a judge tells us."

Klerks is just one of around 100 small publishers and bloggers sued by Righthaven, a copyright enforcement outfit that has acquired the rights to dozens of Las Vegas Review-Journal articles.

The company has grown famous for suing people who posted news articles -- and links back to the Review-Journal -- without first contacting the publishers and asking them to take down the material. Since launching in March, Righthaven has sued mom-and-pop outfits, nonprofits like NORML (National Organization for the Reform of Marijuana Laws) and political organizations including the Democratic Party of Nevada.

Las Vegas Review-Journal publisher Sherman Frederick justifies the lawsuits as a valid way to combat theft of its intellectual property. But critics, like University of North Dakota School of Law professor Eric E. Johnson, see the cases as a shakedown.

"Filing federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior," Johnson writes on his blog. "That would apply to anyone. But for a newspaper to do it is abhorrent."

At least 20 of the lawsuits appear to have settled, with most of the deals confidential. In a few instances, however, the terms were made public. NORML paid $2,185. Other settlements reportedly were as much as $5,000, according to the Las Vegas Sun.

Some of the remaining defendants are fighting back in court, raising a variety of arguments. In addition to Klerks' implied license theory, some defendants argue that their posts were a permissible fair use.

In some of the cases, the bloggers allegedly posted short excerpts of the news articles. In others, however, the bloggers appear to have reposted the entire article, which makes their fair use argument appear weak.

While there may be individual exceptions -- such as when the blogger also served as the source for the article -- it's generally hard for people to argue they made fair use of material when they have copied the entire work, says Kim Isbell, a staff attorney with the Citizen Media Law Project.

Still, even if some defendants won't get far arguing fair use, they might have other defenses, says Isbell. Some of the bloggers reside in states other than Nevada, in which case they might be able to prevail. "The non-Nevada defendants have a decent argument that the court has no personal jurisdiction over them," she says.

Additionally, some publishers were sued based on posts made by users. The Digital Millennium Copyright Act generally provides that Web sites are immune from liability of they remove infringing material upon request, but only if they have complied with certain technical requirements, including registering a designated agent with the U.S. Copyright Office. Even if the site owners haven't done so, they wouldn't necessarily be liable for a user's post unless they actively encouraged infringement, according to Isbell.