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July 24, 2014

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COPYRIGHT LAW:

Legal attack dog sicked on websites accused of violating R-J copyrights

Websites and blogs that post Las Vegas Review-Journal content, however innocent their intent, can expect to be sued without warning

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Justin M. Bowen

Steven Gibson is CEO of Righthaven, which buys copyrights from the Las Vegas Review-Journal, then sues people who have violated those copyrights.

Marc Randazza

Marc Randazza

When it comes to fighting copyright theft in the news industry — the piracy of stories, editorials, columns, photos and videos — there are watchdogs and there are attack dogs.

The Las Vegas Review-Journal and its copyright enforcement partner, a Las Vegas startup called Righthaven LLC, are squarely in the attack-dog category.

In a strategic campaign that is attracting growing interest nationwide in legal and media circles, Righthaven — without warning — has sued at least 86 website owners in federal court in Las Vegas since March for copyright infringement.

Such aggressiveness is unusual in the newspaper industry because most newspapers have acted like watchdogs — playing nice but firm with copyright infringers by asking them to take down their stories and replace them with links that direct readers to the source newspaper. That softball tactic avoids wasting money and time on lawyers and lawsuits, and turns copyright infringers into allies who drive traffic to newspaper websites.

When a call or e-mail to an infringing website doesn’t do the trick, newspapers have issued “takedown orders” — requests to remove the lifted content.

But from the get-go, Righthaven hits copyright violators with lawsuits seeking $75,000 in damages and forfeiture of their website domain names.

Righthaven’s legal initiative has critics calling it a frivolous-lawsuit-and-shakedown campaign aimed not at gaining justice for Righthaven, but at putting money in its pockets — charges denied by Righthaven and its entrepreneurial CEO, Las Vegas attorney Steven Gibson.

“We own the copyright. To call it a ‘shakedown’ is to ignore 200 years of copyright law,” Gibson said.

Righthaven, which employs about 10 people tracking down and suing copyright infringers, claims to have other media partners, although Gibson declined to name them. The newspaper industry — hit hard by bankruptcies, layoffs and the closures of papers — needs Righthaven’s services to stop the diversion of newspaper website users to infringing websites, Gibson said.

Righthaven’s procedure has been to “troll” to find an infringement of an R-J copyright to a specific story. It then buys the copyright for that story from the R-J’s owner, Stephens Media LLC, and afterward sues the infringer.

Buying the copyright is an important step because it allows Righthaven to seek statutory damages. (Some of the defendants are arguing that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement.)

No one disputes the right of the R-J to protect its copyrights, and it’s obvious from Righthaven’s lawsuits that the defendants or their message-board users have been cutting and pasting R-J stories without authorization.

“Bloggers and citizen journalists must comply with the law,” said Sam Bayard, assistant director of the Citizen Media Law Project at Harvard University Law School’s Berkman Center for Internet & Society. After Righthaven started filing its suits, the Harvard center added Righthaven to its database of potential legal threats to bloggers and citizen journalists.

Added media attorney Marc Randazza: “I have no doubt many of them are technically in violation of the copyright law.”

Suing the source

But it’s not the R-J’s copyright claims that have led to the outcry over the suits, rather it’s the way Righthaven is going about enforcing them.

In online forums and news stories, Righthaven has been widely pounded on for suing mom-and-pop-type bloggers, nonprofit groups and special-interest websites that can’t afford to fight back in court — and for hitting copyright infringers with suits rather than asking that they take down the stories and replace them with links to the originals.

“What these people are doing is the equivalent of cutting a clipping out of the newspaper and saving it,” said Randazza, who runs Randazza Legal Group in San Diego and Miami.

In some cases, the R-J has taken a public relations hit after Righthaven sued companies, individuals and nonprofit groups that have for years been sources for R-J news stories and columns, including the Democratic Party of Nevada, Las Vegas public relations executive Steve Stern and former mob figure Anthony Fiato.

The criticism has been sharpest when Righthaven sued individuals such as gaming industry observer Anthony Curtis, as well as companies, for posting R-J stories about themselves — stories made possible because they provided information to the R-J and cooperated with its reporters.

“It’s ironic and stupid,” Curtis said when informed of the suit on June 25. “If they’re going to sue us for quoting us, that gets really stupid.”

‘Lawful but preposterous’

Like many of the defendants, Curtis first heard he was being sued not from the R-J or Righthaven, but from the Las Vegas Sun, which finds the suits during routine court checks and contacts the defendants for comment.

Defendants such as Curtis may have strong “fair use” legal defenses if they were simply using the content to show what the R-J had written about them, said attorney Chris Ridder of the San Francisco law firm of Ridder, Costa & Johnstone LLP. The firm defended the Media Awareness Project, a group advocating drug policy reform, against a Righthaven lawsuit.

Righthaven and the R-J also received unflattering national attention when Righthaven sued a Boston woman who publishes a noncommercial blog about cats, City Felines Blog, written from the point of view of a cat. Her mistake was to post a single R-J story about birds killed in a fire.

The woman, Allegra Wong, responded to the lawsuit by telling the court in a letter: “City Felines Blog is an online diary, a chronology of my thoughts about felines and about the sacredness of all creatures.” Her apparent offense, she told the court, was posting on her blog an R-J story about a fire at a nature sanctuary. “Full credit and a link were given to the Las Vegas Review-Journal,”’ she wrote in the letter.

Critics of Righthaven wonder why it is willing to sustain such public relations hits in the pursuit of monetary damages.

“It’s like setting a hungry wild pig loose in a china shop to find a piece of bacon. It’ll get the bacon, but it will destroy everything else in the process,” said Randazza, who defended the National Organization for the Reform of Marijuana Laws against a Righthaven suit.

Stephen Bates, an assistant professor at UNLV’s Hank Greenspun School of Journalism, called the Righthaven lawsuits “the McDonald’s coffee cases of copyright litigation — lawful but preposterous. They’re a waste of judicial resources.”

“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,” Bates said. “Filing suit is a lousy form of community relations. When the defendant is a source for the story, as in the (Anthony) Curtis case, it’s ridiculous.”

Protecting the copyright

The Righthaven/Review-Journal lawsuit initiative does have its defenders.

“The thing that’s killing the media is the devaluation of its assets, something in which it is a willing participant,” Las Vegas freelance writer Steve Friess wrote last week in a column for Las Vegas Weekly, a sister publication of the Las Vegas Sun. “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.”

Gibson notes that one of the nation’s largest newspaper companies, Tribune Co., filed for bankruptcy protection in 2008. Copyright infringement is diluting the value of the content generated daily by newspapers such as Tribune Co.’s Chicago Tribune and Los Angeles Times, as well as other newspapers such as the R-J and the Las Vegas Sun, Gibson said.

However, when Tribune Co. filed for bankruptcy reorganization in December 2008, the supposed threat of copyright infringement to its online audience wasn’t mentioned. Rather, Tribune was unable to service its $13 billion in debt because of dramatic declines in advertising revenue caused by the recession.

In explaining the Righthaven lawsuits, R-J Publisher Sherman Frederick said on his blog that Righthaven is involved in the protection of journalism. He said the R-J’s parent company, Stephens Media, had “grubstaked” Righthaven and that Righthaven’s sole purpose “is to protect copyrighted content.”

Frederick wrote that he hoped Righthaven “will stop people from stealing our stuff” and secondarily that it will find other clients trying to stop copyright theft.

The Corvette analogy

To explain the suits, Frederick used an analogy involving him displaying a beautiful 1967 Corvette in his front yard.

People would be welcome to stand on the sidewalk admiring the car and could even recommend that their friends come see. “There’d be nothing wrong with that. I like my ’67 Vette and I keep it in the front yard because I like people to see it,” Frederick wrote. “But then, you entered my front yard, climbed into the front seat and drove it away. I’m absolutely, 100 percent not OK with that. In fact, I’m calling the police and reporting that you stole my car. Every jury in the land would convict you.”

Randazza has a different version of the Corvette story.

“The real analogy is this: You have a 1967 Corvette in your driveway, and you charge people $2.95 to take pictures of it. Someone drives by and doesn’t know that you charge to take pictures of it. They take a picture, and you come running out of your house with a baseball bat and demand $5,000 or you’ll smash in the windows on their car,” he told both MediaPost.com, a website covering the media industry, and the Las Vegas Sun.

Randazza said that, particularly for mom-and-pop-type blogsites and websites, the individuals being sued may want to simply admit they made a mistake and hope the court awards minimal damages.

In copyright cases, damages can be as little as $200 or as much as $150,000 per infringement.

None of the contested Righthaven cases has advanced to the point where a trial has been scheduled. Judges as of Friday had not yet ruled on the motions for dismissal or the other legal arguments by defendants.

Randazza says it will be interesting to see if any of the federal judges award much more than a few hundred dollars in these mom-and-pop cases — given the defendants’ lack of intent to steal anything and the lack of any profit they earned by reposting R-J stories.

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