Court awards ‘Ma’ariv’ NIS 6m. in copyright case

‘Haaretz’-affiliated business publication used material based on competitor’s work without proper attribution to authors.

By YONAH JEREMY BOB
Ma'ariv R370 (photo credit: Reuters/Nir Elias)
Ma'ariv R370
(photo credit: Reuters/Nir Elias)
The Central District Court recently awarded approximately NIS 6 million to Ma’ariv, holding that certain affiliates of TheMarker, Haaretz’s business-focused publication, violated the copyrights of Ma’ariv when using some of Ma’ariv’s material on its website during the years 2000-2002.
Ma’ariv received far less than the damages it requested and did not win regarding all the defendants involved, but the victory was still significant and leaves a strong chance of an appeal by TheMarker.
Whereas Ma’ariv had sued nine defendants, mostly decision-makers at TheMarker who were responsible for the use of Ma’ariv material, it only won its case with regard to three of the defendants.
Two defendants were dropped from the case early on, and four other defendants beat Ma’ariv’s claims against them.
Ma’ariv had sought damages of approximately NIS 15,700,000.
TheMarker defendants who defeated Ma’ariv’s claims were granted NIS 30,000 that Ma’ariv will need to reimburse them for court costs and attorney fees.
The case involves TheMarker using certain brief economic updates from Ma’ariv in a section titled “A review of other news media.”
Although TheMarker did give Ma’ariv credit as a newspaper, it did not mention the Ma’ariv authors of the briefs.
Even more problematic, Ma’ariv did not get permission from TheMarker to use the material.
One argument that TheMarker made was that it had used the material for a long time and that such use on websites during the period in question was standard in the industry, as long as credit was given to the newspaper from which it was taken. At the time, the Internet was a new medium where every newspaper was posting stories for free anyway, and some of the limitations on a completely free-use Internet philosophy that have been developed since then had not yet been considered or established.
Ma’ariv responded that, in general, courts have ruled over the years that while there are differences between Internet-based and print-based media in copyright law, the core principles still apply, and copyright violation is still copyright violation.
It also noted that it had warned TheMarker to cease use of its stories and that while some time had passed until it issued the warning, TheMarker continued to use the stories even after the warning, only adding the Ma’ariv authors’ names to try to mollify Ma’ariv.
Next, Ma’ariv noted that TheMarker has itself sued other media outlets for similar unlawful use of its own materials and even won damages using this argument.
Ma’ariv argued the longstanding legal principle that once a party has taken a position on an issue and received a court judgment in favor of that position, it is bound by that position in the future even when it works against its own interests.
The principle is meant to prevent parties from playing different sides of an argument in different cases and to enhance consistency in court rulings.
There were a number of other legal issues that the sides fought about, debating which law applied to the case, as a new copyright law was approved that went into effect in 2008.
The court decided that the old copyright law applied, in light of when the violations occurred.
One reason, among many, that Ma’ariv received less in damages than it demanded was that it lost an argument over interpreting whether courts are obligated under the old law to order the violating party to pay damages of NIS 20,000 for each violation.
TheMarker successfully argued that the law gave the court complete discretion over whether and how much to award for a violation, only suggesting NIS 10,000 to NIS 20,000 as a range, depending on circumstances.
The court awarded Ma’ariv significantly lower damages amount both because of this interpretation and because it considered various actions of Ma’ariv as contributing to the problem and heavily reducing the percentage of damages that TheMarker could be held responsible for.
For example, Ma’ariv knowingly allowed TheMarker to continue using its material without protest over an extended period, such that even the losing TheMarker defendants were only held liable for a reduced percentage of their violations.
But Ma’ariv won a crucial argument holding that it did not need to prove specific damages and causality between the copyright violations and the damages, allowing it to still win a substantial award in the case.