Righthaven LLC may have wrong approach, but news companies need to protect content

by Jane Briggs-Bunting

Stephens Media and its erstwhile partner, Righthaven LLC, lost a significant copyright battle in both Nevada and likely Colorado when a Nevada judge ruled Tuesday that Righthaven did not have standing to sue alleged copyright infringers who had reproduced articles and other content from the Las Vegas Review-Journal.

It’s yet another push by news media to try to get paid for republication of news content reproduced by aggregators, bloggers and others, with or without credit. And bloggers and folks from groups like the Electronic Frontier Foundation (EFF) are fighting back, dubbing Righthaven nothing more than a “Copyright Troll.”

Most news media companies were, with the notable exception of the Wall Street Journal, abysmally slow to react to content poaching by others and reluctant to establish pay walls.

The music industry more or less successfully addressed the issue with a lawsuit against Napster. The movie and TV entertainment industries also seemed more aggressive in protecting their copyright. Good thinking on their parts.

As circulation dropped and advertising revenues plummeted, some newspapers have outright failed and shuttered their doors (think Rocky Mountain News as just one example) while others are struggling to survive. (That’s not to say the web is the chief or only culprit in the decline.)

Enter Righthaven LLC into the fray. It entered into a contract with Stephens Media, owner of the Vegas paper, which gave Righthaven an ownership interest in the copyrighted materials published in the Review-Journal. Then Righthaven’s CEO, Steve Gibson, got busy filing copyright infringement lawsuits – a lot of them – in various federal courts against bloggers and other websites that were reprinting Review-Journal news articles or parts of news articles without paying for the right. Most of the lawsuits so far had settled with Righthaven and Stephens Media splitting the profits, presumably minus court costs and expenses.

But then the EFF got involved in one of the cases involving the Democratic Underground blog that, according to court filings, published four paragraphs of a 34-paragraph story originally published by the Las Vegas Review-Journal. That’s when the real push back started.

A Colorado judge in May froze about 35 pending Righthaven lawsuits involving Denver Post articles until he could rule on the legitimacy of Righthaven’s legal standing to sue. A review of the contract between the Post and Righthaven is what’s at issue.

Tuesday, Chief U.S. District Judge Roger Hunt of Nevada tossed out a suit filed by Righthaven. The judge ruled the LLC had no standing to sue over copyright violations of articles published by the Las Vegas Review-Journal because the newspaper’s parent company, Stephens Media, still retained rights to the articles, according to the ABA Journal.

Now some of the 100 plus bloggers and news sites that settled are considering going after Righthaven.The Denver Post may also be targeted in a lawsuit by a Tea Party group that had been sued by Righthaven. It’s a messy situation, though the news companies (without a partner like Righthaven LLC) do have standing, and it’s about time they started asserting their copyrights.

Bootlegged movies, music and software are digital piracy (aka stealing).

Just like these other industries, newspapers and news media companies have real costs associated with producing news sites by covering and reporting news. Content is not free and never has been. It’s the result of hard work by reporters, photographers, videographers, editors and producers among a host of others.

If more news sites go out of business, news and information that is being aggregated, “borrowed” or in a Napster way outright stolen is going to be harder to find. The public and the country will be the biggest losers.The generic press is certainly not perfect, but what we have in the U.S. is a good deal better than most countries, and the watchdog role of the press is critical to the health and future of the nation.

Non-profit media sites started by journalists like  I-News (the Rocky Mountain Investigative News Network ),  California Watch, and The Texas Tribune are trying to fill the growing deficit with high quality watchdog journalism funded by media foundations, sponsorships, donors and contracts with existing news organizations. These folks are working long hours with uncertain paychecks. The journalists at Pro Publica are more generously paid and better funded, and those reporters and editors are also producing the important investigative journalism vital to the country.

So though the Righthaven’s efforts might now be thwarted, it doesn’t mean the idea of news media companies suing for copyright infringement is a lost cause. It’s not. In fact, it’s an idea that’s long overdue.

As I learned at the Investigative Reporters & Editors conference last week, the Associated Press is reportedly readying a new agreement due out later this summer that will address this pay for content issue. The New York Times started experimenting again with a pay wall in March.  (Okay, it took just a few lines of code breaking to plow through it, and even WSJ‘s pay wall leaks.

In other countries, free access is far less common. Grupo Reforma newspapers in Mexico has always required pay for full access to its news sites.

Many smaller newspapers around the country where profit margins are tighter  have been using various pay walls for longer and with some success. One small town success is the St. Ignace News in Michigan’s Upper Peninsula. Viewers can see the headlines and first sentence or so of the stories, but to get full coverage, they need to subscribe. After four weeks, the news archives are free.  It’s a model that’s working so far.

Seems like good ideas are starting percolate. Righthaven LLC may have been rapacious in its filings, but the notion was long overdue.

9 comments on “Righthaven LLC may have wrong approach, but news companies need to protect content

  1. Nobody here is arguing in favor of IP theft. S&R has been ripped off, too, and we’re big fans of blogs and aggregators playing by the rules. The problem with this post is that it lumps mass murderers in with the completely innocent. I have no issues whatsoever with papers or their partners or agents going after places that steal their content, but Righthaven was also targeting people who were engaging in nothing more than fair use. By the rules they were asserting, S&R has probably been guilty of “theft” several hundred times.

    You have a right not to be stolen from. You do not have a right not to be linked to and quoted with due credit given. Kudos to the judge in Nevada.

  2. Samual

    I agree, if RIghthaven, or better yet the actual newspapers, went after auto-blogs and sites that reprint entire articles en mass that would be one thing but to sue some cat lady and a mildly autistic kid who merely had the misfortune of posting something on their blogs from the wrong newspaper that in no way impacted the market for the content then it starts looking less like protecting your content to a massive shake-down scheme.

  3. Interesting. Two other issues, though.

    1) Comparing news suits and entertainment suits is akin to comparing strikes by paramedics and strikes by football players. As much as I believe journalists should make football money, the reality is their service isn’t entertainment. It’s a public need.

    2) So Righthaven is essentially buying stakes in newspapers for the sole purpose of acting as a collections agent? There’s a right idea out there, somewhere, for growing the news business and this ain’t it.

  4. Samuel

    I agree with you. If Righthaven, or better yet the newspapers involved, went after auto-blogs and those sites that actually may steer readers from the source most people would not have had a problem but they went after small time bloggers like a cat lady and a mildly autistic kid who could not have possibly impacted the papers in question. It went against just about everyone’s sense of justice and fair play.

  5. Very interesting issues. I’ll be interested in reading more of both the Colorado and Nevada judges’ rulings addressing not only standing, but the fair use doctrine that is so much a part of this. Definitely a tough issue with limited success nationally, but yes it does seem that more news and media outlets need to be doing their own part in going after the real stealing that isn’t encompassed in the otherwise vague fair use laws. Will also be interesting to read how the AP comes out with some standards/guidance/etc on the pay-for-content topic. Thanks for writing about this, Jane.

  6. Ms. Briggs-Bunting,

    You state a principle of implied fair use by newspapers being infringed; and proceed to ingore the FACT that the LLC business organization’s, Righthaven, representations to the Court are “flagrantly false—to the point that the claim is disingenuous if not outright deceitful,” as Judge Hunt writes.

    Righthaven in 100s of cases represents to the Court that “Righthaven is the owner of the copyright in and to the Work,” [Righthaven v. Leon, Nichols et al], for example.

    This is belied by the Strategic Alliance Agreement that Righthaven fought unsucessfully to conceal, and which the Electronic Frontier Foundation (EFF) [Laurence Pulgram], Fenwick and West LLP, and attorney Chad Bowers brought to light in the Democratic Underground case.

    Righthaven’s claim to the Court of infringingments on a copyright to which Righthaven had exclusive ownership is simply false. That is why they are facing sanctions, and why all of its cases are frozen in the 10th circuit.

    Righthaven even repeats this outright lie in an e-mail communicaiton, as their attorney, Shawn Mangano, wrote me [public doc] personally: “Righthaven’s Approach to Dispute Resolution: … It is well established that to allege a claim for copyright infringement, only two facts need to be alleged: (1) ownership of a copyrighted work … .”

    Napster is not an analogue here. There is no ownership by Righthaven.

    There is no “notion [that] was long overdue.”

    Righthaven’s business organization flies in the face of federal stature and voluminous case law.

    Copyright and intellecutal property law protections exist, but you appear to argue Righthaven’s position that is utterly discredited.

    Are you arguing that champerty and barratry are long overdue?

    Consider Denise Nichols, a Righthven victim who served 20 years as an Air Force nurse.

    “The complaint, which has been served upon her, does not list her as a party. Nor does it contain any reference to her. No claim is stated against her,” said the filing by Las Vegas attorney Michael Kimbrell. “In the case at hand, the complaint contains no reference by name or title or occupation that can reasonably be deduced to ensnare defendant or provide even a theoretical guess as to how defendant is supposed to respond.”

    This complaint was dismissed of course. But not before this Vietnam War, Gulf War veterans, veterans’ advocate and peace activist, suffered a stroke.

    Now, Nichols is trying to get a meader $1,600 in attorneys’ fees [most of the attys' time was donoted] noting:

    “Displaying the same stubborn posture Righthaven LLC has shown this Court and the same reckless disregard for facts, Righthaven again distorts the record in this matter.”

    “Righthaven served Denise Nichols with a complaint that fails to mention Nichols.

    “Righthaven’s cookie cutter lawsuits made misrepresentations in this case against multiple co-defendants, arguing two separate Venues for alleged infringements that are simply not credible. In one complaint against co-defendant Medbillz, Righthaven names the United States District Court for the Southern District of California as venue. In another complaint served on [Michael] Leon, Righthaven says the proper venue is the United States District Court, District of Nevada.”

    Declining newspaper and their “circulation [dropping]” and lsot advertising revenues have to more to do with media consolidation and corprorate take-overs.

    Honestally, you should really look into these matters; the best site on this is Colleen’s over at:
    http://righthavenvictims.blogspot.com/ .

    Or read a brief by David Kerr, Randazza Legal Group, (EFF), Fenwick and West LLP and Bowers, all of whom are white knights for the First Amendment here.

    Repectfully,

    Mike Leon

  7. There is a big difference between this and the misappropriation of intellectual content in music, films, etc. The news, which is the essential content of these articles, is not their property. Songs, for example, do belong to the creators and publishers. This puts the news organizations on much thinner ice than musicians or film makers.

    People have a right to know what is going on in our country. They do not have a right to listen to music or watch movies for free.

  8. “People have a right to know what is going on in our country. They do not have a right to listen to music or watch movies for free.”

    Yes they do. In exchange for a time-limited monopoly, the public has a right to a public domain. Greed by the recording and motion picture rights collection agencies has all but eliminated most creative works from ever entering the public domain.

    While I don’t condone nor engage in infringement – what goes around, comes around.

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