Copyright Enragement

Megan Tady

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. 

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

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-Jour­nals 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-Jour­nals 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. 

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