Copyhype

H/T to Eric E. Johnson at Blog Law Blog for providing in-depth coverage of the Righthaven lawsuits and Jonathan Bailey at PlagiarismToday for his thoughts on this subject.

Righthaven continues to file new lawsuits, seemingly unabated, adding seven new complaints to the dockets last week. That brings the total number of lawsuits up to 124 as of the writing of this article, according to site Righthavenlawsuits.com.

For those not familiar with Righthaven, it’s a private company engaged by the Las Vegas Review-Journal to protect its news content online. Righthaven’s strategy involves searching online for sites where Review-Journal articles have been republished, buying the copyright to those articles, and then filing an infringement suit against the site. This campaign against infringement began earlier this year, coinciding with an editorial by Review-Journal publisher Sherman Frederick, who announced point-blank (about copyright infringement): “We’re not taking it anymore.”

Those sued so far include everyone from a “cat blogger” and a real estate agent, to both right-wing and left-wing forums, the Nevada Democratic Party, NORML, and most recently, and perhaps most bizarrely, Nevada Senate candidate Sharron Angle – a candidate the newspaper is expected to endorse. ¹A former managing editor of the Review-Journal imagines the endorsement would say something like, “We think she’s a thief, but we like her a lot.”

Competitor Las Vegas Sun has committed to reporting developments in the Righthaven lawsuit story; their site provides numerous articles on the unfolding events. In addition, you can find a large amount of court filings from the various Righthaven suits at Scribd.

Opposition to the lawsuits is growing, not only from interest groups and the general public, but also from the defendants themselves. Some are responding to the complaints with allegations that Righthaven is misusing the legal system. In fact, I don’t even think it’s particularly noteworthy to register your opposition to Righthaven’s campaign, as public opinion appears almost universally critical. What is noteworthy is pointing out the conflation between criticism of Righthaven’s methods and criticism of copyright law in general.

My take on these lawsuits echoes what many others have noted. The complaints themselves have merit. While there are some issues which can be addressed, particularly fair use, the case for copyright infringement is pretty cut and dry.

The problem is the Review-Journal’s approach it has taken. It is using litigation as a way to make money, ²There have been some reports of the amount Righthaven has already collected from settlements, but it’s difficult to see how suing one’s sources – and advertising agencies – is a good business model. and the lawsuits border on vexatious. The way it skips over resolving cases of infringement privately and heads straight to filing a lawsuit undermines the strong public policy for using the legal system as a last resort.

I cannot stress enough that criticism of Righthaven is about its litigation methods, not about the validity of copyright laws and enforcing those laws. If you replace “copyright infringement” with some other cause of action, the criticisms mentioned above would remain the same. Unfortunately, opponents of effective copyright enforcement are more than happy to use the Righthaven lawsuits as yet another example of content industries run amok. This only adds to the challenges of all other content owners who are trying to address dealing with infringement in a digital world.

Safe havens and Fair Use

Let’s take a quick look at the copyright issues raised by these lawsuits. As I said, in many cases they are cut and dry. The Review Journal, as the copyright owner, has the exclusive right to reproduce and distribute its content (and the right to assign its copyright to parties like Righthaven, though the way it is exercising this right raises other questions that I’ll address later). Anyone who reproduces its content without authorization is infringing. As a strict liability tort, it doesn’t matter what the infringer’s intent was in reproducing the content, nor whether the infringer profited from the infringement. Of course, the alleged infringer must have taken more than an insubstantial portion of the original work to be liable. This seems to be the case in most of the Righthaven lawsuits. Sharron Angle, for example, reproduced two individual articles in their entirety on her site.

One defense often mentioned in connection with these lawsuits is the safe harbor provided by the Digital Millennium Copyright Act (DMCA). The law protects online service providers from liability for infringement, providing the famed notice-and-takedown procedure where a content owner can request infringing material removed without resorting to the courts as Righthaven has done. I think the applicability of the DMCA is limited in these cases, however. The DMCA safe harbors only protect service providers from secondary liability – liability for users posting content to forums or BBS’s. It doesn’t apply to direct infringement, and a number of the lawsuits were filed against owners of personal sites and blogs who posted the content themselves. Qualifying for the safe harbors also requires following certain procedures – registering a DMCA agent with the US Copyright Office and posting contact information with the site’s DMCA policies on the site ³Check out this site for pointing out this important information for UGC site operators.  – and it appears that Righthaven has been pretty careful about targeting only those sites that don’t follow these provisions.

The defense that is more likely to come into play with these lawsuits is fair use. The doctrine of fair use allows for certain uses of copyrighted material without the permission of the copyright owner. Courts typically ⁴Close to 60% of the time, as noted by Baron Beebe in his extraordinary article, An Empirical Study of US Copyright Fair Use Opinions, 1978-2005, 156 Univ of Penn Law Review 549 (2008).  use the four factors from 17 USC § 107 to determine whether a particular use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa-tional purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in rela-tion to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Fair use is highly fact-specific, and it’s up to each individual defendant to raise the defense, so it’s difficult to make any generalizations about what role it will play in these lawsuits. You can see, though, that the noncommercial nature of many of the uses in these cases may favor a finding of fair use, though this may be negated where an entire article was reproduced and where no additional commentary or criticism was added to the republication.

Despite some of the limitations on a fair use defense under the traditional four factor test, Eric Johnson makes a strong argument that fair use should protect the right to republish news articles that a person is the subject of. He writes:

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material.

I would add that the practice of reprinting articles about oneself or one’s organization is a fairly well-established practice. Many routinely reprint news articles in press packets and internal newsletters. Many of the fair use opinions dealing with reproducing news content involve commercial press clipping services, where the purely commercial nature of these enterprises typically defeats a finding of fair use. When you consider that the reprinting here is done by the subjects of the articles themselves rather than commercial enterprises, and combine it with the fact that the Review-Journal already provides a multitude of options for sharing content ⁵The site provides numerous RSS feeds, as well as providing options to email, print, or share on 19 different social networking sites each article. it is conceivable that some defendants may succeed with a fair use defense.

It’s Not Copyright at Issue

But however interesting the copyright issues raised in these lawsuits are, they do not explain the almost instinctual aversion most have to Righthaven’s behavior. In theory, it seems odd to criticize Righthaven; if, for the sake of argument, the claims are meritorious, why would anyone speak out against their right to pursue those claims in court?

In a broad sense, the reaction to Righthaven can be compared to the reaction when an overzealous municipality shuts down a kid’s lemonade stand because the tiny tots failed to get the proper vending licenses, as an Oregon city did last month, or a California city did last year. It sparks our conscience whenever anyone, no matter how right, goes nuclear against a relatively minor infraction.

But the problems with Righthaven’s approach go deeper than just shocking sensibilities. They approach the territory of upending ancient notions of how a legal system should work. One hint at how old these notions are comes from some of the answers to Righthaven complaints. We see concepts like “barratry” and “champerty” coming back in style.

In addition to these defenses, the method of Righthaven’s pursuit of lawsuits has been attacked, with some calling them “ambush” style lawsuits. Most lawsuits begin with the aggrieved party contacting a would-be defendant, typically through a cease and desist letter. It is only after the parties fail to come to a satisfactory conclusion that the dispute is taken to the courts. Righthaven skips over this step entirely, going straight to filing suit. One group reported that its first notice that it was in trouble came from “a Google alert indicating a court document had been filed, followed by an e-mail of inquiry from a reporter for the Las Vegas Sun.”

Whether these criticisms of Righthaven’s legal strategy rise to legally recognized defenses remains to be seen. ⁶The doctrine of champerty is often described as ‘vestigial’, see Paul Bond, Making Champerty Work: An Invitation to State Action, 150 Univ of Penn Law Review 1297 (2002). But regardless of whether Righthaven can do what it’s doing, most disagree with Righthaven that it should do what it’s doing.

Going to court is a last resort. This isn’t just good advice, it’s a cornerstone of western law – an assertion that finds support not only in secular thought, but also Judaism and Christianity. ⁷See Max Radin, Maintenance by Champerty, 24 Cali Law Review 48 (1935). Litigation is costly and time-consuming, and most of the time, that’s ok. The costs encourage individuals to settle disputes themselves without getting the government involved. Righthaven flips the default on this view by pursuing litigation as a business and skipping the whole “let’s work this out” step.

We certainly don’t want to close the courts off to those with meritorious claims. But most of us believe that there should be some, well, justice in the justice system. Rules against using the legal system as a sword to vexate others or profit from lawsuits have been in place for a long, long time to prevent extortion and ensure that the legal system operates fairly for all of us. ⁸For more information on the history of champerty and maintenance, as well as discussion on the various public policies the doctrines protect, check out Ari Dobner, Litigation for Sale, 144 Univ of Penn 1529 (1996), and Radin.

The Danger to Content Owners

The gravest danger to content owners and creators not caught in Righthaven’s cross-hairs is that these lawsuits will make their efforts to protect content more difficult. Those opposed to all attempts to maintain the incentive copyright provides are quick to lump Righthaven’s litigation-as-a-business-model in with all efforts by those who recognize that unabated piracy damages the incentive to disseminate new works. It’s doubtful anyone can say anything to change their minds, but it bears repeating that criticism of these lawsuits doesn’t implicate copyright law as much as Righthaven’s strategy.

Is there any lesson content owners can learn from Righthaven? The RIAA litigation demonstrated that lawsuits are cumbersome and costly as a shield against piracy. The Righthaven litigation demonstrates the dangers of using lawsuits as a sword against piracy. In my opinion, this is enough evidence to shift the focus away from the courts as a tool for managing piracy. Content owners and consumers alike would benefit from an alternative approach, whether it involves placing more responsibility on ISPs and service providers for policing infringement, or whether it involves revisiting some of the numerous proposals for addressing online piracy that have been advanced in the past.