Copyright Enragement

BY Megan Tady

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Will newspapers increasingly turn to small copyright lawsuits to bolster waning profits?

Bloggers beware: a company is scouring the Internet for copyright infringement, and then filing lawsuits against virtually any website that hosts Las Vegas Review-Journal articles.

The company, called Righthaven, has filed more than 120 lawsuits since March against bloggers, nonprofits, and political and community organizations for purportedly violating copyright law. While other news organizations, like the Associated Press, have attempted to crack down on blogs and other websites that re-post their content, Righthaven’s actions mark an unprecedented and chilling copyright effort by the newspaper industry.

Righthaven is essentially a “copyright enforcement partner” for the Review-Journal; the owner of the newspaper, Stephens Media LLC, has invested in Righthaven. The outfit trolls the Internet for red flags, buys the copyright for an article after it finds a possible copyright infringement, and then sues the blogger or website host. The company typically seeks a steep $75,000 in damages for one copyright violation, and asks that the alleged offender relinquish his or her Web domain name.

These harsh penalties are quickly threatened, catching users off guard and often scaring them into settling out-of-court, even if their cases could fall under “fair use” under copyright law. Righthaven has sued people for sharing entire articles, linking to an attributed article, or even hosting a forum where readers include links to articles in comment sections.

Undoubtedly, copyright infringement poses a serious challenge to a newspaper industry deeply threatened by the Internet. But the Review-Journal’s punitive process could stifle speech online from those fearing a lawsuit, tie up the court system with benign cases, and prop up a disturbing business model based on ad hoc lawsuits and defendants’ panic.

Cindy Cohn, legal director for the Electronic Frontier Foundation (EFF), said her organization is troubled by what appears to be a “lawsuit mill.” EFF is sifting through the cases and considering how to help defendants. “They’re just bringing a whole lot of copyright lawsuits and figuring they can shake down enough money from enough people to make themselves a tidy profit,” Cohn said.

The Review-Journal/Righthaven sweep is particularly shocking, she said, because the company is not following the traditional protocol of simply notifying websites to take down legally questionable postings of content. “They’re basically suing people first,” she said. “They’re not giving any cease and desist notices. … It really reflects that it’s a business proposition to them and not about copyright infringement.”

The Las Vegas Sun, a competitor of the Review-Journal, has been outspoken in its disdain for the newspaper’s new practice. In a blog post, one of the paper’s reporters wrote:

[W]e’ve dealt with this by attempting to convert infringers into allies. Instead of suing them without warning, we ask that they take down our material and replace it with a link and at most a paragraph or two from the story. Such links drive traffic to our site, which is a good thing, especially for our advertisers. … Granted, we’re not out aggressively searching for past copyright infringements and if we did, no doubt we’d find thousands. Frankly, we’re too busy with other things, like covering the news.

No one has been able to quantify how or if news piracy on the Web affects newspapers’ bottomlines or contributes to newsroom closures and layoffs, The Sun notes.

Eric E. Johnson, a law professor at the University of North Dakota School of Law, offers even more scathing analysis of the Review-Journal’s actions. While Righthaven may have the upper hand in many suits where people paste entire news articles on their site, Johnson writes, “[f]iling federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior.” The Review-Journal looks like “a pack of feral alley dwellers instead of an earnest news organization that is deserving of the public trust.”

Despite these rebukes, Righthaven’s business proposition appears to be growing. Another newspaper chain in Arkansas, WEHCO Media, which controls 28 papers in the state, has recently become a Righthaven client.

Does this mean that newspapers will increasingly turn to small copyright lawsuits to bolster waning profits? It’s unclear, but the fact that doing so would be a grave mistake isn’t. While newspapers understandably want to protect their content, they should also want their stories and photographs to travel far and wide to entice a new–and hopefully growing–audience to their site. Remaining in a print bubble and relying on a closed online distribution model smells like a funeral for the already dying newspaper industry.

“I understand that the powers that be in journalism are very concerned because their business model doesn’t work anymore in an era of Craigslist and free classified ads,” Cohn said. “But the idea that suing the audience is the answer, or in this instance, the small bloggers who are drawing attention to the work that you’ve done, is going to save journalism… I don’t think that anybody who seriously thinks about the future of journalism thinks this is the answer.”

Let’s hope that other news outlets will approach copyright issues with dignity, fairness and an appreciation for the power of online viral content. Otherwise, we’ll see a newspaper industry still failing to embrace the Web as it sinks further and further away from readers.

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Megan Tady is a blogger and video producer for Free Press, the national nonprofit media reform organization. She writes a monthly InTheseTimes.com column on media issues. Follow her on Twitter: @MegTady.

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