Law Firm's Approach to Protecting News Media Copyrights Raises Eyebrows

Righthaven pursues bloggers and other Internet users who republish content

In a series of lawsuits that have drawn nationwide attention and controversy, law firm Righthaven and the Las Vegas Review-Journal have set out to aggressively pursue bloggers and other Internet users who copy and republish Review-Journal stories online. The Review-Journal has claimed it has a legal right and an economic responsibility to protect its copyrighted content from unauthorized republication, but some have criticized the legal approach as heavy handed.

Righthaven: Locating and Suing Infringers

According to an October 19, 2010 story by the Bureau of National Affairs (BNA) Media Law Reporter, Righthaven is funded by an affiliate of the Review-Journal's parent company, Stephens Media. Former Review-Journal Publisher Sherman Frederick explained in a May 28, 2010 blog post on the Review-Journal website that Stephens Media "grubstaked" Righthaven, using a term common to mining whereby one company supplies money to a venture in return for some of the venture's profits. In the post, titled "Copyright theft: We're not taking it anymore" Frederick said Righthaven's "only job is to protect copyrighted content."

An August 4 story in the Las Vegas Sun, which has closely followed the Righthaven lawsuits, explained that Righthaven employees search the Internet to find websites that have republished portions of Review-Journal stories online. Righthaven then buys the copyright for the republished story from Stephens Media and sues the infringer, typically demanding $75,000 in damages as well as forfeiture of the domain name of the infringer's website. (For more on the early developments of the Righthaven lawsuits, see "News Media Seek Legal Tools to Protect Original Content" in the Summer 2010 Silha Bulletin.)

BNA's Electronic Commerce & Law Report reported on November 2 that Righthaven had filed 167 lawsuits against various online publishers around the country since March 2010. The Sun reported October 20 that some of the suits have been settled out of court while others are in "various stages of litigation." A blog dedicated to tracking the suits has court filings and other documents and is located at http://www.righthavenlawsuits.com.

Defendants Look to 'Fair Use,' Lack of Standing, or 'Implied License'

Few defendants who have challenged the Righthaven copyright lawsuits have prevailed, but one defendant successfully had a suit dismissed. In an October 18 order granting a realtor's motion to dismiss, Judge Larry Hicks of the U.S. District Court for the District of Nevada ruled that realtor and blogger Michael Nelson's republication of part of an April 30, 2010 Review-Journal article about a new federal housing program was "fair use" under the Copyright Act, 17 U.S.C. § 107 et seq.

Applying the standard four-step test for fair use, Hicks examined the "purpose and character" of Nelson's use of the article, "the nature" of the Review-Journal article, the amount Nelson used, and the unauthorized use's "effect on the potential market for the copyrighted work." In his four-page order, Hicks observed that Nelson "reproduced only the first eight sentences of a thirty sentence news article," which contained only the factual information from an article that was "split between factual news reporting and reporter commentary." Hicks ruled that even though the purpose and character of Nelson's use of the article was commercial, it was "likely to have little to no effect on the market for the copyrighted news article" because Nelson's copied portion, which "did not contain the author's commentary ... does not satisfy a reader's desire to view and read the article in its entirety [with] the author's original commentary." Hicks added that Nelson included a link leading readers to the original Review-Journal story. The ruling dismissed Righthaven's suit. Righthaven v. Realty One Group, Inc., et al. 2010 U.S. Dist. LEXIS 111576 (D. Nev. Oct. 18, 2010)

The Sun reported October 20 that Righthaven CEO Steven Gibson said his firm would not appeal Hicks' order dismissing the case because it had reached a confidential settlement with Nelson prior to the ruling. The Sun said Hicks apparently was not aware of the settlement when he made his ruling. Gibson said that if there were no settlement with Nelson, Righthaven would consider appealing the ruling to the 9th Circuit U.S. Court of Appeals. The Sun also reported that Gibson said that the ruling indicates that fair use would not be a viable defense in the majority of Righthaven's lawsuits, which involve the posting of entire stories without authorization.

Digital rights advocacy group the Electronic Freedom Foundation (EFF) took on two of the Righthaven suits, countersuing the law firm on behalf of a crime blogger interested in "no body" murder cases and a user-driven political satire and commentary website called Democratic Underground.com. In both cases, the EFF has argued that the websites are protected by fair use. In the case involving the crime blog, the EFF supported its fair use claim by stating the website is "non-commercial" and "benefits the public interest" by "assisting prosecutors and homicide investigators in bringing justice to the friends and families of 'no body' murder victims." In the case involving Democratic Underground.com, the EFF claims that the website's use of a portion of an article about Nevada Republican Senate candidate Sharron Angle was fair use because the user who posted it included only the first five sentences of a story that was 50 sentences long. Righthaven v. DiBiase, 2:10-cv-01343-RLH-PAL (D. Nev. 2010) and Righthaven v. Democratic Underground, 2:10-cv-01356-RLH-RJJ (D. Nev. 2010)

On November 15, Righthaven filed a motion for voluntary dismissal of the suit against Democratic Underground.com with the Nevada District Court. Citing the court's ruling recognizing the fair use defense in the Realty One Group case, and the fact that the user in the Democratic Underground.com suit also only used about 10 percent of a longer article, Righthaven said in its motion that "in this case, it appears to be in the best interests of Righthaven--and in the best interests of the Defendants--to not exhaust judicial resources on the instant lawsuit and instead allow this matter to be voluntarily dismissed." The motion was filed "in the interest of judicial economy," adding that "though Righthaven firmly believes that the Defendants are liable for copyright infringement ... reasonable minds may disagree as to the legitimacy of a fair use defense." The motion also said that "Righthaven does not anticipate filing any future lawsuits founded upon infringements of less than 75% of a copyrighted work, regardless of the outcome of the instant litigation."

Wired magazine blog Threat Level reported October 27 that, as was the case with Democratic Underground.com, many of the Righthaven lawsuits have arisen "not from articles posted by a website's proprietors, but from comments and forum posts by the site's readers." The Digital Millennium Copyright Act's "safe harbor" provision, 17 U.S.C. § 512, generally protects websites from liability for information posted by users if the website quickly removes or disables access to material that is identified in a copyright holder's complaint. However, in order to qualify for the safe harbor provision, websites must meet several criteria, including adopting a copyright policy and notifying users of that policy, having no knowledge of the infringing activity, not benefiting financially from the infringement, and identifying and registering a "designated agent" with the U.S. Copyright Office who can manage copyright "takedown" complaints. Registering a designated agent requires website proprietors to fill out a form and mail it to the Copyright Office along with a $105 fee. Threat Level reported October 27 that "an examination of Righthaven's lawsuits targeting user content suggests it's specifically going after sites that failed to fill out that paperwork."

Courts have also rejected defendants' challenges based on jurisdiction and copyright ownership. On October 28, District Judge Gloria M. Navarro denied a motion to dismiss a Righthaven copyright suit filed by Canadian website Majorwager.com. The website claimed that Navarro should dismiss the suit because Righthaven failed to prove that Majorwager.com had sufficient legal contact with the state for the federal court in Nevada to hear the case, a doctrine known as "personal jurisdiction." The court cited 9th Circuit precedent in copyright infringement as well as a previous Righthaven case in observing that Majorwager.com "willfully infringed copyrights owned by" Righthaven in an article published by the Review-Journal, which it knew is based in Nevada, causing harm to be suffered in Nevada. The court also said that hearing the case in Nevada was "reasonable" because although doing so would place a heavy burden on Majorwager.com in requiring it to litigate a case in a foreign country, that fact was outweighed by the state's interests and the plaintiff's interests. Righthaven v. MajorWager.com, 2010 U.S. Dist. LEXIS 115007 (D. Nev. Oct. 28, 2010)

Navarro also rejected Majorwager.com's argument that Righthaven lacked standing to sue because it did not own the copyright to the Review-Journal article when the infringement took place. The article was posted in a forum on the website by a user with the pseudonym "CLEVFAN" on March 18, 2010. Stephens Media assigned ownership of the article, as well as the "right to seek redress for past, present and future infringements of copyright" on March 24, and Righthaven filed suit on April 7.

Navarro said that because Righthaven had rights to sue over "past, present and future infringements," it could sue the website for an infringement that occurred before it owned the copyright to the article. In a footnote, however, Navarro noted that Majorwager.com did not "address the true nature of the transfer or any other possible defects related to Plaintiff's standing. ... if only a right to sue was transferred; Plaintiff may lack standing." Navarro cited ABKCO Music v. Harrisongs Music, 944 F.2d 971 (2nd Cir. 1991), which she said stands for the proposition that the "Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf."

In its two counterclaims on behalf of Democratic Underground.com and DiBiase, the EFF has claimed that Righthaven solely licenses copyrights from Stephens Media for the purpose of suing infringers, or, in the words of DiBiase's counterclaim: "Righthaven does not have a regular business model of deriving revenue from licensing copyright rights with respect to any information or content other than in connection with litigation, if at all. ... Righthaven's sole revenue is settlements from the copyright infringement cases it has filed."

In a ruling on another Righthaven case, Navarro said the owner of a website devoted to skyscrapers and urban development might be able to assert that the Review-Journal provides an "implied license" to republish its stories. Righthaven v. Klerks, 2010 U.S. Dist. LEXIS 105307 (Dist. Nev. 2010)

On September 17, Navarro granted defendant Jan Klerks' motion to set aside a default judgment against him. According to Navarro's order, Righthaven sued Klerks on May 19, 2010, and after he failed to respond to a summons, a clerk's default was entered July 9. However, before a default judgment was entered, Klerks filed a motion to set aside the judgment, claiming that the summons was sent to the wrong address and therefore he never received it, and that the first he learned of the suit was when a Las Vegas Sun reporter called him.

Navarro ruled that Klerks' motion met the standard of "good cause" required to set aside the default judgment. She noted not only that "he promptly retained counsel and filed the instant motion" as soon as he learned of the complaint, but that he provided a "meritorious defense" against the suit. Although not ruling on the merits of the arguments, Navarro said that a "fair use" analysis "weighed in favor" of Klerks, particularly because his blog is a nonprofit venture, because the Review-Journal article in question was "primarily informational," and because the effect on the market is limited because infringing "because the same article was viewable to the public for free on the Las Vegas Review-Journal's Website."

Moreover, Navarro said Klerks' "most meritorious defense" was "implied license," which the U.S. District Court for the District of Nevada ruled in Field v. Google, 412 F. Supp. 2d 1106 (Dist. Nev. 2006) "can be found where the copyright holder engages in conduct from which the other party may properly infer that the owner consents to his use." Klerks claimed the Review-Journal "offered the article to the world for free, encouraged people to save and share the article with others without restrictions, and permitted users to 'right-click' and copy the article from its website." Righthaven instead claimed that "allowing a user to copy an entire article and post it to the user's website is similar to allowing a user to copy a library book and distribute the copies; a practice that it notes is illegal under current copyright laws," Navarro wrote. Nevertheless, she found that Klerks "made a plausible argument based on the recent cases addressing the copying of works taken from the internet."

Critics Question Righthaven's Approach; Newspaper is Unapologetic

Outside of court filings, critics of the Review-Journal and Righthaven have raised questions about the long-term impact of a zealous legal approach to protecting news media copyrights.

Sherwin Siy, deputy legal director for Public Knowledge, a public interest group based in Washington D.C., told BNA's Media Law Reporter on October 19 that "if somebody is infringing on somebody's copyrights, they certainly have a right to sue. I don't think there is any debate about that. [But] the existence of copyright law isn't a license to abuse it either." Siy said Righthaven's approach is "turning our legal system into a moneymaking enterprise."

Stephen Bates, an assistant professor at the University of Nevada, Las Vegas' school of journalism, told the Las Vegas Sun for an August 4 story, "Like most writers, I've had my articles posted online without permission. I'm usually glad to get the attention. When I'm not, I ask that they be taken down. That's how these things are handled. People go to court as a last resort, not as a first resort--especially when the infringer is a small nonprofit or a blogger who probably doesn't know better."

Criticism has been most acute when Righthaven suits have targeted unexpected defendants. For example, Righthaven sued former Senate candidate Angle on September 3 for republishing numerous Review-Journal stories on her campaign website. Review-Journal Publisher Sherman Frederick had long been an outspoken Angle supporter on his blog, and the newspaper endorsed Angle on October 3.

Steve Friess, writing for the AOL blog Politics Daily on September 10, observed that the lawsuits could strain relationships between Review-Journal reporters and their sources. Friess reported that one suit targeted the website of Anthony Curtis' Las Vegas Advisor tourist magazine after the magazine posted online a Review-Journal story reporting the results of a survey conducted by the magazine. Friess said the Review-Journal story "was itself the result of a scoop the Advisor handed to the paper, and now threatens the reporter-source relationship between the Advisor and the [Review-Journal]'s entertainment scribe."

According to the Sun on August 4, Curtis learned of the suit in June when a Sun reporter asked him for a comment about it. "It's ironic and stupid," Curtis said. "If they're going to sue us for quoting us, that gets really stupid."

Frederick was unapologetic in his May 28 blog post. "It is our primary hope that Righthaven will stop people from stealing our stuff," he wrote. "It is our secondary hope, if Righthaven shows continued success, that it will find other clients looking for a solution to the theft of copyrighted material." The Threat Level blog reported August 30 that Righthaven had added a second client, Arkansas-based WEHCO Media, parent company of the Little Rock Arkansas Democrat-Gazette and the Chattanooga (Tenn.) Times Free Press.

The Review-Journal reported November 12 that Frederick had stepped down as publisher, and was replaced by Advertising Director Bob Brown. He was also replaced as Stephens Media CEO by Michael Ferguson, the company's former chief operating officer.

According to an October 6 report by BNA's Electronic Commerce & Law Report, a panel of media lawyers speaking at a September 25 conference focused on "Media Law in the Digital Age" said that online publishers should expect to see more lawsuits of the Righthaven variety. Christopher A. Wiech, an attorney in the Atlanta office of law firm Troutman Sanders, said that because it is unrealistic for many individual bloggers to hire a lawyer to defend their use of a single article, many are likely to accept settlements of "a couple thousand dollars." If Righthaven is successful in getting these types of settlements, Wiech said, "you're going to see more and more types of entities like this pop up."

On September 24, The Associated Press (AP) reported that AP President and CEO Tom Curley called for better enforcement mechanisms to limit unlicensed and unauthorized use of news online. In remarks at a training program run by AP Managing Editors at the First Amendment Center in Nashville, Tenn., Curley said the AP was engaging in efforts to track websites that "scrape" AP content systematically without paying for it.

The Sun reported September 25 that Mark Hinueber, vice president and general counsel of Stephens Media, said he was encouraged that the AP is also taking aim at unlicensed use of its news content. Hinueber spoke during a presentation sponsored by the Las Vegas Chapter of the Society of Professional Journalists. He said he hoped that efforts by the AP and others would deter copyright infringers, and that "Righthaven isn't the only solution to this problem." The Sun reported Hinueber called for "some sort of digital rights agency" that could help protect copyright and license content.

According to the Sun, Hinueber said that although the lawsuits have generated negative publicity for the Review-Journal and may have created problems for reporters whose sources were sued, the lawsuits would continue. "I think the benefits are worth the negative publicity," he said.

Friess defended the Righthaven suits in a July 28 post on the Las Vegas Weekly website. "Offenders think they deserve a polite warning, but I'm all for scaring the hell out of them," Friess wrote. "The thing that's killing the media is the devaluation of its assets, something in which [the media] is a willing participant. This could be a first step toward reminding people that information may want to be free, but those who provide it have bills to pay, too."

- PATRICK FILE
SILHA FELLOW AND BULLETIN EDITOR

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