Fighting the Copyright War

Review-Journal using flood of lawsuits to help protect intellectual property

What do a cat blog, a gaming website, a real estate agent, marijuana reformers and the Nevada Democratic party all have in common?

They’ve all been sued by a Las Vegas company called Righthaven for publishing all or parts of articles that originally appeared in the Las Vegas Review-Journal. Since March, Righthaven has filed 75 lawsuits (as of press time) in federal court accusing bloggers, political parties, online casinos and others of violating copyright law.

Review-Journal publisher Sherman Frederick wrote about the lawsuits in a May 28 column, in which he compared the posting of the R-J’s copyrighted content on a website to stealing his 1967 Corvette. “I’m absolutely, 100 percent not OK with that,” he wrote.

Although Frederick did not respond to interview requests, Mark Hinueber, vice president and general counsel of Stephens Media, which owns the R-J, explained it like this: “Our reporters would come down the hall every day and say, ‘Look at this, my stories are on these websites,’” Hinueber says. “Well, Righthaven came along at a time when we were looking for solutions to this problem.”

While neither Righthaven nor Stephens will elaborate on their business agreement, Hinueber explained that Stephens assigns certain intellectual property rights to Righthaven, which chooses whether it wants to pursue infringements.

From there, recent history has shown that Righthaven then files a lawsuit in U.S. District Court against the website operator considered in violation, and the defendant finds out about the case when he or she is contacted by Las Vegas Sun reporter Steve Green, who has followed the ever-growing story for the competing daily newspaper, seeking comment about the case. There’s no letter, no warning, no request to take down the article, just a lawsuit—a federal one, because that’s how copyright law works.

Hinueber says that despite accusations in the blogosphere and elsewhere, the R-J is doing fine financially and Righthaven’s recent pursuits have nothing to do with bringing in an alternative income stream. Instead, this is one way of protecting the newspaper’s intellectual property in a world of constantly evolving technological platforms.

But isn’t it going a little far to file a lawsuit without just asking the individuals to either post it properly (and properly, according to Hinueber, is to post a link to the story and no more than the first paragraph) or take it down?

Stephen Bates, assistant professor at UNLV’s Hank Greenspun School of Journalism & Media Studies, says that some kind of communication with the defendant is usually a given. “The lawsuits are legal but sleazy,” he says. “Nearly all copyright owners ask that infringing material be taken down before filing suit. Righthaven, on behalf of the Review-Journal, is heading straight to court instead.”

Bates says that copyright laws have been broken—but tolerated—for some time. Litigation has always been an option, but it’s something that, until now, simply hasn’t been done. Should the Righthaven way become a precedent, Bates says it could really shift the online landscape.

“If this ends up representing a trend, it’s a bad development,” Bates says. “Bloggers especially may have to spend thousands of dollars on lawyers and settlements when, if the copyright owners just asked, they’d be glad to remove the material.”

But Righthaven’s business model is based around them not asking.

Steve Gibson, CEO of Righthaven, says that if his company sent out takedown letters he would have to hire hundreds of people to respond to the seemingly limitless copyright infringements out there. “It would be an extraordinarily expensive operation to do that,” he says, “and certainly my company would not be in a position to provide the services to its client that it provides and get compensated in an appropriate way and keep people employed if all we did was send out takedown letters like a charitable organization.”

As it stands, Gibson says that most of the cases his company is working on are being settled out of court and most of those settlements are confidential.

The National Organization for the Reform of Marijuana Laws has been vocal about its settlement with Righthaven. First Amendment attorney Marc Randazza represented the organization, which settled its case for $2,100. “I think the R-J ought to be ashamed of itself for allowing this to happen,” Randazza says. He says that NORML’s website never ran entire Review-Journal stories. Rather, it provided the links to another organization’s website that published the stories.

“Copyright law is not supposed to act as a complete lockdown on the exchange of ideas and thoughts,” says Randazza, who has worked on numerous copyright-infringement cases. “The purpose of copyright law is to encourage the creation of new works—not to act as a ‘gotcha’ payday if some kid cuts and pastes a news article in an online forum.”

Randazza described the defendants being sued by Righthaven as “mom and pop, kids and elderly people—people who didn’t know any better.”

“Is filing 60 lawsuits over utter and complete bullshit really the right way to use the courts?” he asked.

Gibson is steadfast that, yes, it is. He says that the cases they’ve filed so far are just the beginning.

“We believe that there are millions if not billions of infringements out there,” he says. “So you can do the math.”