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.
Maariv is seen on the newspaper's building in TA Photo: 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
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
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.
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
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.
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
The principle is meant to prevent parties from playing
different sides of an argument in different cases and to enhance consistency in
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.
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
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
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.
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
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.