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April 5, 2011, noon

Is Righthaven the copyright enforcer news needs, or the one it deserves? How its suits could affect journalism

Could Righthaven be the enforcer publishers deserve, but not the one it needs right now? Yes, I’m shamelessly co-opting a line from The Dark Knight — partly out of love for that movie, but also because the controversial firm is viewed as both a defender of content and an Internet villain.

Righthaven’s business model is to buy up and then enforce copyrights at the behest of newspapers like The Denver Post and the Las Vegas Review-Journal. It’s a goal they’ve undertaken with a remarkable urgency: more than 260 lawsuits, according to the Las Vegas Sun’s Steve Green, who’s been tracking them.

Rather than sending cease-and-desist letters to alleged copyright infringers, Righthaven’s strategy has generally been to proceed directly with lawsuits, seeking monetary damages or even ownership of the defendants domain name. Many of the suits have been against small blogs and sites whose threat to the online traffic or revenue of newspapers is unclear. That’s led to no shortage of criticism.

“We understand that the infringement community are not great fans of Righthaven,” Righthaven founder Steve Gibson told me. “We believe that the creative community is.”

The role of copyright and fair use is evolving in an age of sharing buttons. Gibson makes the case that tracking and resolving copyright cases is a full-time job that would prove difficult for a publisher that should be focused on producing new work.

But with one of their most recent lawsuits, Righthaven may have triggered a ruling that could have a broader impact on journalism and copyright law. On March 18, U.S. District Judge James Mahan ruled that an Oregon nonprofit was covered by fair use when they posted the entire text of a Review-Journal story on its site.

“Righthaven might not be thinking through what the legal ramifications are of losing these cases,” said David Ardia, director of the Citizen Media Law Project.

In the lawsuit against the Center for Intercultural Organization, the judge ruled the nonprofit was able to publish a 33-paragraph story under fair use because the group was using it for informational purposes. Ardia said 33 paragraphs stretches the known boundaries for established practice in fair use. Though Ardia thinks it will be some time before any broader conclusions can be drawn from the case, he said its time for news organizations to take notice.

“There is good reason to be concerned for media companies that a decision like this case involving the nonprofit weakens the position of news organizations arguing that some copyright infringements are not fair use,” Ardia said.

Gibson told me it’s premature to worry about copyright law being altered. Given the number of cases Righthaven has in progress and the appeal of the CIO suit, Gibson said the state of copyright is far from settled. “We’re either going to reform copyright law or we’re going to uphold and enforce it,” he said.

Righthaven’s strategy, as much as it is about protecting copyright and generating revenue, is also about sending a bright flashing message to potential infringers. That’s why Righthaven’s strategy favors lawsuits over cease and desist letters, which Gibson said create no disincentive for someone already breaking copyright law.

Ardia — former assistant legal counsel for The Washington Post — said newspapers approach to addressing copyright has typically been more quiet, ranging from emailing someone to take down a story to official cease and desist letters. That’s partially out of a sense for public relations — no newspaper wants to be seen as bullying its readers — but also because often the copyright infringers are not drawing significant traffic away from a newspaper’s site, Ardia said.

“I think that the blunderbuss approach to litigation, without careful thought of who you are suing and how the public will perceive such a lawsuit, raises important concerns for the public image of newspapers,” he said. Ardia said Righthaven’s goals and those of most news organizations may be quickly diverging as the lawsuits pile up.

Gibson says that, while 260-plus cases may seem like a lot, he doesn’t see it as outsized: “It’s a molecule in the drop of water relative to the ocean of infringements out there.” He said the web and new technology create new urgency for copyright cases. “As the economy becomes more sophisticated, more and more people’s livelihoods will be associated with the protection of information that information technology is allowing them to produce and publish,” he said.

When I asked Gibson if Righthaven has a method of measuring success, either through cases won or damages and settlement costs received, he said they have internal goals they use, but their interest is largely in advancing case law for copyright. What’s important, for publishers and writers at all levels, is that these cases will result in copyright law being clarified in many respects, Gibson said. “The fundamental question we face as a society is are we going to be a society that respects copyright law or not,” he said.

Image by John W. Iwanski used under a Creative Commons license.

POSTED     April 5, 2011, noon
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