Posted on 07/21/2010 12:09:10 PM PDT by JerseyHighlander
| Story |
| Newspaper Enlists Startup To Police Web For Copyright Violations |
| Wendy Davis, Apr 22, 2010 07:13 PM |
As part of a copyright crackdown, a startup called Righthaven has filed five lawsuits against Web sites that allegedly lifted articles from the Las Vegas Review-Journal.
In recent weeks, Righthaven has sued the nonprofit group NORML (the National Organization for the Reform of Marijuana Laws), the association Citizens for Responsibility and Ethics in Washington, real estate agent and blogger Matt Farnham, gambling site MajorWager.com and the company MoneyReign, which allegedly runs the site casinoreign.com. The lawsuits allege that the defendants reposted articles, or portions of them, from the Las Vegas Review-Journal. Righthaven asserts in court papers that it obtained exclusive rights to reproduce and distribute the newspaper's articles from its parent company, Stephens Media, owned by Las Vegas Review-Journal president Sherman Frederick. Righthaven is run by intellectual property attorney Steven Gibson, who previously brought other, unrelated cases on behalf of Stephens Media. While some newspaper executives have vocally complained about infringement online, copyright lawsuits over news items remain rare. What's more, when cases are filed, they tend to be against defendants who compete for readers, as happened when Gatehouse Media sued Boston.com or Dow Jones sued Briefing.com. The Righthaven cases, by contrast, are against companies that are not in the news business. The cases seemed to have come as a surprise to some of the defendants. Farnham, the realtor who was sued last week for allegedly posting portions of two articles to his blog, says no one ever asked him to remove the material. "I would have taken it down in a heartbeat," he says. Farnham adds that he was only trying to share items that he believed would interest people searching for real estate. "I thought it was a compliment to the paper that I wanted to get that information out," he says, adding that his posts linked back to the newspaper. "I had honest intentions."
NORML executive director Allen St. Pierre says that the site has posted portions of articles and links back to the original sources for 10 years without receiving any previous complaints from publishers. "We really are flummoxed," he said, adding that no representatives of the Las Vegas Review-Journal asked him to remove the material before suing. "Had we received a notice we would have taken it down, we would have apologized, and we would have asked them what size NORML T-shirts they wanted," he says. St. Pierre adds that NORML plans to contest the lawsuit. "We think there's a much larger principle at hand here regarding access to information," he says. He also says the organization received no income or discernible traffic from the alleged infringement. In addition, he says, NORML's news items come from another drug reform organization, MAP Inc. The Digital Millennium Copyright Act does not require content owners to send publishers takedown demands before suing unless infringing content is uploaded by third-parties. The copyright statute also provides for damages ranging from $750 to $150,000 per infringement, regardless of whether the newspapers can show they lost money as a result. That holds true even if the infringement is relatively insignificant, says Seattle-based Internet law expert Venkat Balasubramani. "There's no de minimus exception," he says. While the Web sites could attempt to argue that they made fair use of the material, doing so could be an uphill battle if the sites reprinted significant portions of the articles verbatim, without adding original commentary.
Frederick declined to comment on why Stephens Media transferred the copyrights to Righthaven or whether the company planned to do likewise for any of the other newspapers in its chain. But Righthaven's Gibson indicated that more lawsuits were on the way. "Righthaven's copyright ownership portfolio is increasing," he said. "It certainly is attuned to dealing with copyright infringement that occurs in the electronic environment." |
NewYorkCountryLawyer writes "In the new mass filesharing suit brought in Washington, DC, on behalf of a filmmaker, Achte/Neunte v. Does 1-2094, the Electronic Frontier Foundation, Public Citizen, and two ACLU organizations have filed an amicus curiae brief supporting a motion by Time Warner to quash the subpoena. EFF commented: 'We've long been concerned that some attorneys would attempt to create a business by cutting corners in mass copyright lawsuits against fans, shaking settlements out of people who aren't in a position to raise legitimate defenses and becoming a category of 'copyright trolls' to rival those seen in patent law.'"
And reader ericgoldman notes a case that arguably falls under the same umbrella: "Sherman Frederick, publisher of the Las Vegas Review-Journal, wrote a blog post declaring 'Copyright theft: We're not taking it anymore.' Apparently upset that third-party websites are republishing its stories in full, the newspaper 'grubstaked and contracted with a company called Righthaven ... a local technology company whose only job is to protect copyrighted content.' Righthaven has brought 'about 22' lawsuits on behalf of the newspaper, including lawsuits against marijuana- and gambling-related websites. Frederick hopes 'if Righthaven shows continued success, that it will find other clients looking for a solution to the theft of copyrighted material' and ends his 'editorial' (or is it an ad?) inviting other newspapers to become Righthaven customers. A couple of months back Wendy Davis of MediaPost deconstructed some of Frederick's logic gaps."
bookmark.
THE NEW FREEDOM OF THE PRESS: The right to control access to information, and the ability to suppress any discussion of the content of such information.
Seems reasonable.
I believe this is one area where they'll have trouble with their lawsuit against FR...
I don’t believe Facebook activism is generally useful, I changed my facebook image to green, and yet the Mullahs still control Iran.
However, there is a Facebook group up to spread awareness about the lvrj and RightsHavenLLC,
http://www.facebook.com/pages/stop-the-LVRJRIGHTHAVEN-witch-hunt/131089883577553?v=wall&viewas=0
The NO freedom of the press.
Do these rules only apply to right leaning sites or all sites?
PING
A business model based on the principle of guys who resell the golf balls they retrieve from dredging the water traps on golf courses after hours. Or the street hustler in my old neighborhood who sold little flags and flower bouquets that he had gathered the night before from the cemetery.
I suspect that's the main criteria ~ that the party republished substantial parts of an article without surrounding it with discussion material, and they have money.
Suing people without the means to pay the damages is, for the most part, a foolish pursuit particularly if you are a lawyer with time to spare!
Ping
Thanks for the post!
Thanks for the post!
I wonder who is funding Righthaven?
“Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.”
Read More http://www.wired.com/threatlevel/2008/08/judge-copyright/#ixzz0uLYcojtC
Did an evaluation take place?
Why on Earth would they have a problem with this? He linked the piece to their website. It helps get publicity for them.
From the article:
Farnham adds that he was only trying to share items that he believed would interest people searching for real estate. “I thought it was a compliment to the paper that I wanted to get that information out,” he says, adding that his posts linked back to the newspaper. “I had honest intentions.”
I have never seen anything except blog postings posted here in full so why are they suing?
That is not a defense. If they publish on their own sites, they are liable to be sued. I have no sympathy if they were publishing full articles, or a significant portion of them. I do sympathize if they only posted small excerpts with links to the sources, which should fall under fair use.
Sites like FR, DU, etc., do NOT fall under this. The publishers need to send specifically-formatted DMCA takedown notices for content added by users. The DMCA is generally a bad law, and even the takedown notice provision has been abused (it needs strict minimum penalties for fraudulent notices), but in general the requirement of the notices is one of the few good things about the law. It is supposed to protect site operators from getting sued over the submissions of users; otherwise, it would be too dangerous for anyone to run a site that facilitates public discourse.
just found this article in the Las Vegas Review-Journal and posted in its entirety on Craigslist Pakistan...
From the article:
Righthaven asserts in court papers that it obtained exclusive rights to reproduce and distribute the newspaper's articles from its parent company, Stephens Media, owned by Las Vegas Review-Journal president Sherman Frederick. Righthaven is run by intellectual property attorney Steven Gibson, who previously brought other, unrelated cases on behalf of Stephens Media.
It sounds to me like Righthaven deliberately bought distributor rights for the Review-Journal in order to initiate lawsuits.
John Robinson is, and has been at all times relevant to this lawsuit, the self- proclaimed owner of the copyright(s) in the work(s) posted as part of the content accessible through the Domain
Absolutely incorrect. The complaint itself admits he claims copyright only over the SOFTWARE that runs the site, not any content.
At all times relevant to this lawsuit, the Defendants knew that the Work was originally published in the Las Vegas Review Journa
Completely unsubstantiated claim. The owners of this site most likely do not know of every article posted.
The Defendants willfully copied, on an unauthorized basis, a substantial and significant portion of the literary work entitled: “SENATE POLL: Lowden leads Republican pack” (the “Senate Poll Article”), attached hereto as Exhibit 3, from a source emanating from Nevada
Factually incorrect. Some users copied, not the defendants. Same for the other articles.
73. Free Republic has willfully engaged in the copyright infringement of the Work. 74. James Robinson has willfully engaged in the copyright infringement of the Work. 75. John Robinson has willfully engaged in the copyright infringement of the Work
This is listed under "Facts." Willful infringement ("willful" being a very important word when statutory damages are sought) cannot be proven on FR since all articles are user-submitted.
May I suggest looking at Google's successful memorandum of law requesting summary judgment under DMCA safe harbor in the Viacom suit. I got that from the Electronic Frontier Foundation's site. They are normally kind of a leftie group, but they are also natural allies for FR in this matter.
Patent trolls move to copyright. But at least with copyright there's usually no question as to whether the subject matter subject to copyright.
That is exactly what they did.
It's like buying a fleet of ambulances so that you can chase them.
They are only using their copyright ownership rights in order to troll for lawsuits. They do not own the copyright in order to make money from the distribution of the written material. They bought it for the sole purpose of hunting down people who may have posted the material on a third party website.
This is about as low as you can get. The fact is that they are not making money on the distribution of the copyrighted material, but only on the alleged violation of the copyright. It's a scam.
Scumbags.
There are few better words for these worms.
Sorry, wrong link, that was Viacom’s unsuccessful motion for summary judgment. Here’s Google:
http://www.eff.org/files/filenode/viacom_v_youtube/googleviacomyoutubememorandum.pdf
I just love the way you DON'T mince words, P-Marlowe!
I don't always reply to your posts; but I sure do enjoy reading all of them!
This one is spot-on, IMHO. As usual. Thank you!
As to the merits of the case, looks to me like just another new species of "lawful" shakedown of people we dislike. I'm looking forward to developments; and hope you will keep me "in the loop" of your commentary on breaking events.
same here Marlowe. Keep pinging me.
The thread article indicates they think there’s no reason to notify a site of their displeasure with copy/pasting an entire article from their site.
Is this accurate?.
I don't know the logistics of the copyright law, but what I have garnered from perusing the web on Righthaven is that these guys go to newspapers that have web sites and offer to purchase the copyright ownership rights to the material posted on their websites. I have a feeling that they don't actually "pay" for the rights, but they get the rights transferred to them in order that Righthaven (rather than being a lawfirm acting on behalf of the newspaper) becomes the plaintiff in any copyright infringement action. So Righthaven (which appears to be basically an arm of Attorney Steven Gibson) trolls the net looking for stories and articles which they allegedly have copyright ownership rights to and when they see one posted on the web, they file a shakedown lawsuit.
What is interesting is that Righthaven would appear to have no actual damages. If someone re-posts one of these newspaper articles, the only legitimate entity which could claim damages would be the newspaper or the author, who misses out on hits to their website thus losing potential advertising revenue. Righthaven is not collecting revenue for selling the articles, they are collecting on the lawsuits (and I imagine they are sharing the revenue with the newspapers as part of the deal to transfer ownership of the copyright to Righthaven).
Obviously Righthaven doesn't care about the actual damages either to themselves or the newspapers and they are apparently only looking to recover the punitive damages for the copyright violation (I don't know how much it is per posting, but it could be substantial and I don't think it needs to be tied to any actual showing of damages).
So after they troll the internet and find a "violation" they file a suit and then shakedown the website for whatever it can get.
This is a classic legal scam.
I don't think you can get lower than this.
This being a lawsuit machine, I'm guessing they searched the Internet for their articles and filed suit against the sites hosting each one found. While it appears most of the site operators are plainly responsible for copyright infringement, this lawyer didn't stop to consider the possibility that some of the sites are protected from liability under the DMCA safe harbor provision.
Sites like FR are required by law to promptly remove any offending material upon notice in order to be protected, but AFAIK such a notice was never made. But this is a for-profit lawsuit machine, and there's no money to be made in takedown notices. Those only serve the purpose and intent of copyright in stopping infringement.
I give 100:1 odds this gets thrown out on summary judgment. A part of me hopes Jim goes for sanctions and recouped attorney fees due to the gross disregard for the law in this case, especially in light of the recent YouTube decision.
They only have to claim statutory damages. In that case damages can go between $750 and $30,000 per work. Defendants who can show they weren't aware can get it reduced to $200 per work. You'll notice the suit claims "willful infringement." That was to pump the maximum statutory damages to $150,000 per work if it can be proven.
So, the lawyer involved (Righthaven) does not own the articles, only the copywrite?
It sounds like the publishing world’s answer to derivatives.
Maybe they can sell the ink of the articles to someone else....or all the articles and verbs of being.
Truly a weird reach to make some money.
I don't know and I don't think it matters. What they have purchased is the right to sue for any copyright violation and to be the plaintiffs (thus insulating the newspapers from any problems that might arise if they were to lose the lawsuit and be countersued for some tort, like abuse of process).
This kind of practice of law appears to me to be quite similar to a law firm that used to exist in California called the "Trevor Law Group".
The tactics of Righthaven appear to be almost identical to those of the Trevor Law Group and their abuse of the legal system appears to be at least as eggregious.
Ultimately all the lawyers at the Trevor Law Group were disbarred.
We can only hope that the same fate awaits the lawyers at Righthaven.
In recent weeks, Righthaven has sued the nonprofit group NORML (the National Organization for the Reform of Marijuana Laws), the association Citizens for Responsibility and Ethics in Washington, real estate agent and blogger Matt Farnham, gambling site MajorWager.com and the company MoneyReign, which allegedly runs the site casinoreign.com. The lawsuits allege that the defendants reposted articles, or portions of them, from the Las Vegas Review-Journal.It's time to compile a list of LVRJ's entire staff, because I intend to put them on a lifetime boycott list.
If this works like the East Texas patent trolls, they have created an LLC with no assets just for the lawsuits. If they win, the company pays the attorneys and the original owner's cut. If they lose on a countersuit, there are no assets to surrender. Of course it being an empty LLC, there's nothing really to countersue over.
BTW, the Texas patent trolls often go further, creating a new LLC for each separate lawsuit, dissolving it after each case is concluded. It's worth it because they're going up against big companies and aim to reap millions from each suit. Unfortunately, I haven't even heard a rumor over disbarrment among those attorneys.
When you talk to your lawyer, ask him/her specifically to look into champerty and maintenance.
Many lawyers have never heard of the torts, yet champertous contracts can, depending on jurisdiction, be void for public policy or attract liability for costs.
They may well be applicable in your case given the fact situation presented in this thread.
How does Fair Use figure into this.??
Seems reasonable.
Not really. A reasonable attempt to correct a perceived wrong should be required prior to serving litigation. A takedown notice/demand doesn't require a lawyer (unless the one issuing the demand just likes to give away money unnecessarily), and does not subject the recipient to any expense. A lawsuit, regardless of merit, imposes costs on the defendant (or apparently in these cases the VICTIM) to even respond to the suit. In most cases, the victim cannot recover these costs even if the lawsuit was clearly frivolous and simply an attempt to extort a settlement. Any serious copyright infringement lawsuit should definitely be preceded by a notice/demand to take down the offending material (regardless of who posted the material).
Following up on this post:
I'm not a lawyer ... and I say that with pride ... but if I correctly understand the law, champerty, maintenance and barratry create liability for damages which are assessed directly against the tortfeasor -- in this case Righthaven, possibly its officers and directors, and certainly the attorneys bringing suit. As such, shell companies do not insulate individuals from the consequences of their actions.
bump
Across the country, the lower courts are all over the field on what constitutes copyright infringement. The USSC needs to step in - again - and define the playing field.
That’s you in Case #2, isn’t it?
Bummer.
That Las Vegas rag is as good as dead.
My word, these schmucks are complete shakedown artists!
Unbelievable!
TITLE 17 > CHAPTER 1 > § 107
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
You have to make your own opinion, clearly these lawsuits have various defendants and I do not know the situation for each of them. I know what happened on FR and see this as a frivolous waste of court resources.
I’ve begun contacting advertisers of the LVRJ and taking note of what ones to avoid in the future.
“......Stephens Media, owned by Las Vegas Review-Journal president Sherman Frederick. Righthaven is run by intellectual property attorney Steven Gibson,......”
Wouldn’t it be interesting to know the political affiliation of both Sherman Frederick, and Steven Gibson, as such intimidation of members of the New Media warrants such suspicion in my book.
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