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Righthaven: Copyright lawsuits as a business model

November 4, 2010 |  5:19 pm

Chasing pirates Just as digital technology has empowered copyright infringers, so too has it created new opportunities for those who enforce copyrights. Tools and techniques developed by such companies as Attributor and BayTSP enable copyright holders to see how their works are being republished or shared online, often without their authorization. And lawyers around the world are capitalizing on such tools to bring scores of claims for damages.

One example is Righthaven, a copyright-enforcement venture launched in Las Vegas by local attorney Steve Gibson. According to the Electronic Frontier Foundation, Righthaven searches for sites that post articles from selected publishers, buys the rights to those works, then sues the sites' owners for infringement. It has filed more than 165 of these cases so far, and has plans to expand to more jurisdictions.

I have no quarrel with copyright holders cracking down on blatant infringements online. What troubles me is when copyright holders use technology to cast a legal dragnet that snares legitimate users of content as well as pirates. Righthaven appears to have done so in at least a handful of cases, prompting the EFF to offer its help to Righthaven's targets.

Perhaps that group is rife with real infringers. I'm not sure what percentage of enforcement misfires is too high for society to abide. But the new automated tools for tracking copyrighted material online can't tell illegal uses from legal ones, increasing the likelihood of cases being brought against people making fair uses of content. And the high cost of defending against an infringement lawsuit may lead innocent defendants to settle claims instead of fighting them in court. When that happens, it has the perverse effect of chilling creativity instead of protecting it.

How wide is Righthaven's net? In an interview Tuesday, Gibson declined to go into detail about the company's methods. But he said "the vast majority of Righthaven lawsuits deal with infringers that take most, if not all, of the work and republish it." He added that newspapers that put the resources and effort into creating articles ought to have "the right to control the republication of those works."

Determining whether a use is infringing involves more than just considering how much of the original work was used. Other factors are whether the original work is factual or fictional (courts are more protective of the latter, given that one cannot copyright facts), the extent to which the new use transforms the original, and the effect of the new use on the market for the original. It's a complex evaluation that courts do on a case-by-case basis.

So far the EFF is defending against two of Righthaven's lawsuits. One was brought against Democratic Underground, a user-generated content site that aggregates posts from Democrats about politics and policy. In mid-May, one of the site's users posted a five-sentence excerpt from a Las Vegas Review-Journal piece about Republican Senate candidate Sharron Angle (along with a link back to the complete original on the Review-Journal's site). Two months later, Righthaven acquired the copyrights to the article and sued the site and its owner, David Allen. The lawsuit, which says the site engages in "willful blindness" by not proactively removing copyrighted material, seeks up to $150,000 in damages and control of the site's domain name.

The other case was brought against Thomas A. DiBiase, a former federal prosecutor who runs www.nobodycases.com. The site, which aims to help prosecutors in murders where the victim's body is never found, is a compendium of information on more than 300 such cases. One feature is a blog that offers news stories and excerpts about no-body cases, with links back to the original articles.

On June 11, DiBiase included in his blog an entire piece from the Review-Journal about a man sentenced to die in a no-body case. Righthaven acquired the copyright from the newspaper's publisher in late July, and the next month it sued DiBiase in federal court. In addition to statutory damages of up to $150,000, the complaint asks the court to give it control over DiBiase's website.

The EFF, Palo Alto-based law firm Wilson Sonsini Goodrich & Rosati and Chad Bowers, a Nevada attorney, offer a similar defense in both cases. The two sites make fair use of the news stories, they argue, and Righthaven isn't entitled to relief because it doesn't try to license or distribute copyrighted content -- its only source of revenue is lawsuits. According to the EFF's motion to dismiss some of Righthaven's claims against DeBiase:

Many of the targets of Righthaven’s suits appear to be individuals and non-profit organizations who lack the economic resources to defend themselves against Righthaven’s claims.... Righthaven uses the threat of statutory damages in the amount $150,000, the potential loss of the defendant’s domain name and the prospect of attorney’s fees to extract settlements.... Given the lack of any economic harm to Righthaven, its refusal to seek non-judicial resolution of its claims before bringing suit and the impracticality of actually litigating its torrent of cases, Righthaven’s business model seems premised on forcing nuisance-value settlements.

Gibson said that Righthaven does, in fact, have ambitions for a broader array of revenue streams. "My ultimate goal," he said, is to "provide a vehicle through which individuals who are not the authors have an efficient means to licensing content on an authorized basis." In other words, Righthaven could serve as a clearinghouse for sites to obtain the right to republish other people's work. He added, "Even if it might not be in and of itself a creative vehicle, the goal is to protect authorship."

Many copyright holders just can't keep up with the huge volume of infringements online. Gibson contends that Righthaven can achieve the scale necessary to meet the challenge. Part of the vision, he says, is seeking the statutory penalties that could deter future infringers. "Righthaven has come along as a means to, at some level, work with authors to effect a protective arrangement that they’re not able to do themselves."

Maybe that explains why Righthaven doesn't ask sites to take down content it considers infringing -- it just sues them. And maybe in its quest for a high volume of lawsuits, Righthaven doesn't have time to distinguish likely fair uses that serve the public from garden-variety infringers who serve only their own economic interests. But why is that good for the society?

It's also disturbing to see copyright holders try to hold sites that aren't piracy hotbeds responsible for the material posted by their users, as Righthaven does in the Democratic Undergound lawsuit. The company's complaint suggests that user-generated sites are obliged to filter out potentially infringing material without waiting for the copyright owner to ask, but that's not what the courts have held in the 2nd and 9th circuits. Instead, judges have imposed filtering requirements only after a site has been found liable for infringing -- see, for example, the 9th Circuit's first Napster ruling ("[W]e place the burden on plaintiffs to provide notice to Napster of copyrighted works and files containing such works available on the Napster system before Napster has the duty to disable access to the offending content. Napster, however, also bears the burden of policing the system within the limits of the system.")

Nor is Righthaven fighting by Queensberry rules when its lawsuits seek to seize domain names. The remedies in copyright law, although substantial, do not extend to confiscating websites' addresses. Including such a demand in an infringement case just seems like bullying.

The EFF's Kurt Opsahl said one of Righthaven's cases has progressed far enough for a judge to weigh in on the merits, and the results weren't good for the plaintiff. U.S. District Judge Larry Hicks dismissed Righthaven's claim against realtor Michael J. Nelson and his blog, saying Nelson made a fair use of an eight-sentence excerpt from a Review-Journal piece about a Fannie Mae program for buyers of foreclosed homes.

-- Jon Healey

 

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