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Copyright & Righthaven

By 4 November 2010 No Comment

The bounty hunter is a staple character of fiction (see, e.g., Steve McQueen’s last film), fascinating because of the inherent moral ambiguity. He, or in this post-masculine era, she, enforces the law but is also rather outside of it, often suspected of freely crossing the legal line according to the advantages dictated by a flexible sense of situational ethics.

Righthaven is a Las Vegas company that, in concert with newspaper chain Stephens Media, has brought bounty hunting to the world of copyright.  Its business model is to acquire newspaper articles, many of them published on-line, and then search the Net for infringements by websites that reprint all or part of the pieces. So far, it has filed 167 suits, according to Righthavenlawsuits.com, which also has a list of articles on the problem.

Righthaven is eclectic, suing both Nevada Senate candidate Sharron Angle and a site called Democratic Underground. This last action has caused a particular uproar, because it was based on a user’s excerpt of four paragraphs from a 34 paragraph story in the Las Vegas Review, and included a link back to the original article.  (DU has 161,372 user registrations and 51 million posts since 2001.) Righthaven is demanding $75,000 in damages and forfeiture to Righthaven of the Democratic Underground’s website domain name.

This sort of thing gives property rights a bad name. (One could also say it blackens the name of lawyers, but that would contravene the rule of grammar that a superlative cannot be intensified – just as something cannot be “more perfect” or “more unique,” lawyers are already in such low repute that they cannot be blackened further.  Walter Olson of Overlawyered compares the Righthaven business model to other legal mills, such as “mass ‘citizen suit’ filings against small businesses and school districts over paperwork lapses” and “the ADA filing mill” whereby “serial complainants and their lawyers carve out profitable practices visiting dozens or hundreds of businesses and leveling ADA complaints that they then settle for cash.”)

Much of Righthaven’s business model has a quality of juvenile over-cleverness, in that it relies on the misfit between the Internet and legal doctrines created in the print age. To be precise:

  • There is a quality of ambush to it, in that the news articles are allowed to be copy-able and ship-able. It is easy enough for a copyright owner to avoid this if it desires. Indeed, it is easy for a copyright owner to make its site impervious to search engines.
  • It contradicts the custom of the country, as it has arisen on the Internet, that allows free copying within the limits defined by the popular sense of fairness, providing credit and linkbacks are given. Property rights are malleable, and adapt to the actual conditions on the ground, though it sometimes takes a bit of time. See Terry Anderson’s The Not So Wild, Wild West: Property Rights on the Frontier:

    The authors emphasize that ownership of resources evolves as those resources become more valuable or as establishing property rights becomes less costly. Rules evolving at the local level will be more effective because local people have a greater stake in the outcome. This theory is brought to life in the colorful history of Indians, fur trappers, buffalo hunters, cattle drovers, homesteaders, and miners. The book concludes with a chapter that takes lessons from the American frontier and applies them to our modern ‘frontiers’—the environment, developing countries, and space exploration.

  • The Righthaven approach works only because of the legal provision for heavy statutory damages, which makes it risky to contest the case, plus of course the legal expense. Democratic Underground would win a fair use argument, but it is cheaper to pay a few thousand in settlement (and never link to the LV Review again) than to litigate.  Indeed, fair use is particularly strong in the context of political discussion, and even has constitutional status, so the chances of Righthaven prevailing against minor references would be remote. In fact, a real estate agent who chose to contest just got a case dismissed on the grounds that he was simply quoting facts, which cannot be copyrighted. The Electronic Frontier Foundation, which knows an opportunity for good PR when it sees one, is filing fair-use-based countersuits against Righthaven.
  • The approach also relies on the fine print of the Digital Millennium Copyright Act (DMCA). Websites are largely protected in that anyone claiming infringement must give notice and provide an opportunity for the site to remove the offending material – BUT this safe harbor can be used only if the site has filed a notice with and paid a $105 fee to the U.S. Copyright Office. Wired has picked up this point, and is informing the blogosphere, so the major outcome of the whole mess may be a bonanza for the Copyright Office.

All-in-all, the verdict on RIghthaven seems to be that another old American custom should be revived – tar-and-feathering. I don’t know how many of those articles listed on Righthavenlawsuits.com are sympathetic to Righthaven or its newspaper clients, but I would bet on a very low number.

So in the interests of fairness, it is worth reading the statement of the publisher of the Law Vegas Review-Journal explaining his action. It raises serious issues. I would quote some of it, but for obvious reasons I will refrain, since Digital Society does not want to be required to litigate how much use is fair use, and, while the paper acknowledges that concept, Righthaven apparently does not.

A recent post on Patently-O is also sympathetic to the copyright holder’s case, though I find it unconvincing. It assumes that the Internet should maintain strict adherence to legal formalities that have been rendered technologically obsolete until someone gets around to changing them, and that is simply not how the world works, or should work. It is the lawmakers who must adapt to the new technological realities.

One of the repetitive themes of the 19th Century is how Congress kept trying to keep settlers from going West, and kept failing, and then had to recognize squatters’ rights. As Santayana said, “Those who cannot remember the past are condemned to repeat it.”

Our problems are soluble, with a little technology and micropayments.

Copyright Fail image from tvol’s photostream.

Shark image from Overlawyered.

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