Righthaven, Wronghaven

September 13, 2010 · · 1 comment

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.1

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,2 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 site3  - 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 typically4  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 content5 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.6 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.7 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.8

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.

Footnotes

  1. A 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.” [↩]
  2. There 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. [↩]
  3. Check out this site for pointing out this important information for UGC site operators. [↩]
  4. Close 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). [↩]
  5. The site provides numerous RSS feeds, as well as providing options to email, print, or share on 19 different social networking sites each article. [↩]
  6. The 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). [↩]
  7. See Max Radin, Maintenance by Champerty, 24 Cali Law Review 48 (1935). [↩]
  8. For 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. [↩]
Posted in: General · 1 comment

Share: Reddit Google+ LinkedIn

Viacom Appeals Lawsuit Against YouTube

August 18, 2010 · · 1 comment

On August 11, 2010, media giant Viacom filed notice with the Second Circuit that it would be seeking an appeal in its legal battle against YouTube. The Southern District Court of New York essentially threw out the case, granting summary judgment to YouTube on June 23. Viacom originally sued the video site in 2007, claiming that the site did not do enough to prevent users from uploading infringing videos. The stakes are high – Viacom alleges $1 billion in damages, and Google has already spent $100 million to defend. More importantly, the case may have ramifications for many sites that rely on users for content.

What is this case all about? Some have suggested that Viacom is trying to “get back” at YouTube after it failed in a bid to buy the video site. Or even more sinisterly, maybe the case is an example of the entertainment industry’s shift toward propping up failing business models by extracting settlement money from legal threats. Exploring those contentions may have merit, but that’s not what this site is for. Instead, I’m more interested in examining the legal principles at work to get a better grasp at what’s going on inside the courtroom.

The case boils down to this: what obligation does a host like YouTube have to keep infringing materials off their site? To understand this a little better, let’s first take a closer look at secondary liability and internet safe harbors.

Secondary Liability

Qui facit per alium facit per se.1

By default, we are not responsible for someone else’s actions. There are circumstances however where the law does hold one person responsible for the actions of another. In criminal law, for example, someone aiding and abetting a criminal can be charged with the same offense. In civil law, the concept is sometimes referred to as secondary liability.2

It makes sense. If you have some sort of control over another’s actions and you benefit from their wrongdoing, or if you help someone knowing they will use your help to commit a wrong, you shouldn’t be let off the hook. Secondary liability is also a form of risk allocation. Holding someone responsible for the acts of those in their control encourages safety and fair business practices. Finally, secondary liability addresses concerns of obtaining redress when someone is wronged. It is more efficient to sue a single employer rather than multiple employees, and the person running the show often has deeper pockets than those under his control.

Secondary liability is well-established in many areas of the law. Let’s turn now to how courts have used it in the copyright context.

Secondary Liability in Copyright

Courts have applied two separate theories of secondary liability to copyright cases: vicarious  liability and contributory infringement.3 Vicarious liability includes the concept of respondeat superior, used to hold employers responsible for the acts of their employees, and requires that one benefits from conduct within one’s right or ability to control. Contributory infringement requires providing the means to engage in infringement with knowledge that infringement will occur.

One point of confusion: it’s easy to conflate secondary liability with direct infringement, but important to keep the two ideas separate.4 Direct infringement requires an unauthorized reproduction, distribution, or public performance. Secondary liability is liability for indirect infringement. The person doing the actual reproduction or distribution is directly liable; anyone who is not engaged in those acts but is contributing to – or controlling and benefiting from – that direct infringement is indirectly liable.

While vicarious liability is fairly easy to find in older copyright cases5, contributory infringement was relatively rare before the internet became popular. It became easy for anyone connected to transmit all kinds of data, including copyrighted content – and transmit they did, first by the hundreds, than by the thousands, than by the millions (often anonymously). The transmission of this content was made possible by several different parties: ISPs, web hosts, BBS operators, etc. Which of these parties should also be held responsible for infringement by internet users?

The DMCA

Needless to say, courts struggled with applying traditional legal doctrines to new, unfamiliar technologies. Concerned about the effects liability would have on the growth of an important communications network and the problem of having inconsistent law throughout the country, Congress passed the Online Copyright Infringement Liability Limitation Act (OCILLA) as part of the Digital Millennium Copyright Act of 1998 (DMCA).6

OCILLA provides online service providers7 with a conditional safe-harbor from secondary liability.  For anything stored on a service provider’s system or network at the direction of a user – e.g., a video uploaded to YouTube – service providers can qualify for this safe-harbor if they do not have knowledge of the specific infringing act, do not benefit directly from the infringement, and remove the infringing material when they receive notification from a content owner. This last aspect is known as a “notice-and-takedown” procedure.

So, continuing with the YouTube example, a user who uploads a television clip to YouTube has directly infringed – he has reproduced and distributed a copyrighted work without authorization from the owner.  YouTube would ordinarily be indirectly liable for this infringement, either because it has provided the means for the user to infringe or because it has the right and ability to control what is presented on its site and benefits from the traffic its content attracts. But under OCILLA, it is shielded from this potential liability if it removes the video once it either has knowledge that it is infringing or when the content owner sends a DMCA notice.

Viacom v. YouTube

The heart of the case between Viacom and YouTube hinged on interpretation of the “knowledge” component of the safe-harbor. The full language of the statute states that a service provider only qualifies if it

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

Viacom alleged that YouTube was acting in “willful blindness“. It was well aware that large amounts of  content on its site was infringing but chose to ignore it – welcoming it, even – unless it received notification from the content owner. Essentially, Viacom argued, this awareness of infringement in general constituted the “actual knowledge” that triggers YouTube’s obligation to remove the material without receiving notice from the content owner.

The court sided instead with YouTube, and held that actual knowledge meant “actual or constructive knowledge of specific and identifiable infringements of individual items.” “General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.”

That leaves the second prong of the knowledge component – a lack of awareness of “facts or circumstances from which infringing activity is apparent.” This is sometimes called “red flag infringement,” as in the facts and circumstances surrounding the activity should raise a red flag that infringement is occurring.

After reading the case though, I couldn’t figure out what, if anything, constitutes a “red flag”. Several others have pointed out that courts have largely written out the “red flag” prong. Here, the court wholesale adopted reasoning from Perfect 10 v. CCBill, a 9th Circuit case dealing with “red flag” trademark infringement. Copyrights and Campaigns author Ben Sheffner notes how unconvincing the reasoning of that case was:

In other words, under Ninth Circuit precedent, having material identified by its poster as “illegal” and “stolen” is not a red flag that infringing activity is taking place. One is left to wonder whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.

One of the basic rules of interpreting a law is to avoid rendering any part superfluous.8 Courts assume lawmakers had a reason for wording a statute the way they did; any interpretation that vitiates a word, phrase, or entire provision subverts the lawmaking process.9

So the question is, what exactly would count as a “red flag”? It would have to be something less than specific knowledge that a particular work is infringing, but something more than general knowledge of infringing activity, including material specifically identified as being “illegal” or “stolen.” It’s difficult to think of anything that would fall in that middle ground, and it is possible that this interpretation of “red flags” will be revisited on appeal.

Why This Matters

This ruling has little effect on YouTube. Its policies have changed substantially since the suit was filed; today, many content providers have few qualms with YouTube’s approach to infringement, and the site continues to develop technological solutions to police infringement more effectively, especially its Content ID program. In addition, the pending appeal means that the lower court’s holding has little effect.

But the issues at play bring up a larger question: how much burden should be placed on hosts for policing infringement when they encourage user-generated content to drive traffic to their sites and, ultimately, sell advertising (or make money off the traffic in some other way)? While the DMCA has given content providers a mechanism to remove infringing material that is far cheaper and faster than going to court, the scale of the internet and ease of reproducing and distributing content means that creators still must focus an inordinate amount of time on managing infringement. YouTube is just one of many sites.10 If we talk about secondary liability in the context of risk allocation, should sites like YouTube – which receive a direct benefit by allowing user-generated content and have a greater ability to monitor what is uploaded on the back-end than multiple content creators have on the front-end – have more of an obligation to minimize direct infringement?

We’ll have to wait and see.

Footnotes

  1. “He who acts through another does the act himself.” [↩]
  2. It is also sometimes called third-party liability, a linguistic oddity that makes me chuckle. [↩]
  3. A third type of secondary liability, inducement, was introduced in MGM v. Grokster, but it is still unclear whether the Supreme Court meant to create a new, discrete form of secondary liability or whether they were merely rephrasing the concept of contributory infringement. [↩]
  4. Some courts have even fallen into this trap – see Patry on Copyright § 21:40 [↩]
  5. Many cases involve unauthorized public performances of music by bands hired by dance halls [↩]
  6. OCILLA was codified as 17 U.S.C. § 512. [↩]
  7. “Online service providers” encompasses any company or service that transmits or communicates information between users and includes internet service providers and web sites. [↩]
  8. CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends. [↩]
  9. This is different from a court striking down a law on constitutional grounds. If the constitutionality of a law is not being challenged, courts generally don’t have the power to change the meaning of laws to whatever suits them. [↩]
  10. Viacom notes that monitoring YouTube alone is time-consuming. [↩]
Posted in: Secondary liability · 1 comment

Share: Reddit Google+ LinkedIn