Enforcing Copyrights Online, for a Profit

By: Dan Frosch
The New York Times

When Brian Hill, a 20-year-old blogger from North Carolina, posted on his Web site last December a photograph of an airport security officer conducting a pat-down, a legal battle was the last thing he imagined.

A month later, Mr. Hill received an e-mail from a reporter for The Las Vegas Sun who was looking into a Nevada company that files copyright lawsuits for newspapers. The e-mail informed Mr. Hill that he was one of those that the company, Righthaven, was suing. Though the airport photo had gone viral before Mr. Hill plucked it off the Web, it belonged to The Denver Post, where it first appeared on Nov. 18.

Howard Kingsnorth | Photodisc | Getty Images

Mr. Hill took down the photo. He was too late. A summons was delivered to his house. The lawsuit sought statutory damages. It did not name a figure, but accused Mr. Hill of “willful” infringement, and under federal copyright law up to $150,000 can be awarded in such cases.

“I was shocked,” Mr. Hill said. “I thought maybe it was a joke or something to scare me. I didn’t know the picture was copyrighted.”

Over the last year, as newspapers continue to grapple with how to protect their online content, Righthaven has filed more than 200 similar federal lawsuits in Colorado and Nevada over material posted without permission from The Denver Post or The Las Vegas Review-Journal.

The company has business relationships with both newspapers. Like much of the industry, the papers see the appropriation of their work without permission as akin to theft and harmful to their business, and are frustrated by unsuccessful efforts to stem the common practice, whether it’s by a one-man operation like Mr. Hill’s, or an established one like Matt Drudge’s.

Sara Glines, a vice president for the MediaNews Group, which owns The Denver Post, wrote in an e-mail that the pat-down photo had been used on more than 300 Web sites with no credit to The Post or the photographer.

“We have invested heavily in creating quality content in our markets,” Ms. Glines wrote. “To allow others who have not shared in that investment to reap the benefit ultimately hurts our ability to continue to fund that investment at the same level.”

Mark Hinueber, general counsel for Stephens Media, owner of The Review-Journal, echoed Ms. Glines’s concerns, saying that cutting and pasting articles “steals the potential audience for our editorial material and traffic to our Web sites.”

Some critics, however, contend that Righthaven’s tactics are draconian, and that the company hopes to extract swift settlements before it is clear that there is a violation of federal copyright law. Typically, the suits have been filed without warning. Righthaven rarely sends out notices telling Web sites to take down material that does not belong to them before seeking damages and demanding forfeiture of the Web domain name.

Defendants in these cases run the gamut. They have included the white supremacist David Duke, the Democratic Party of Nevada and Mr. Drudge. But little known Web sites, nonprofit groups and so-called mom-and-pop bloggers — people who blog as a hobby — are not exempt from Righthaven’s legal actions.

According to some Internet legal experts who have been watching the cases with growing interest, the way it works is simple: Righthaven finds newspaper material that has been republished on the Web — usually an article, excerpts or a photograph — and obtains the copyrights. Then, the company sues.

Whether the defendant credits the original author or removes the material after being sued matters little. None of the cases have gone to trial yet, and many have been settled out of court. In two instances, judges have ruled against Righthaven in pretrial motions. According to The Las Vegas Sun, which has tracked the cases, the only two publicly disclosed settlements were for $2,185 and $5,000.

In describing his company’s approach, Steve Gibson, Righthaven’s chief executive, said that there has been “voluminous, almost incalculable infringement” since the advent of the Internet and that years of warning people to take down copyrighted content had not worked. Newspapers, he said, needed a new way to address the problem of people appropriating their material without permission.

Eric Goldman, director of the high-tech law institute at the Santa Clara University School of Law, said reposting published material online could qualify as “fair use” if it didn’t diminish the market value of the original. Other critics of the suits contend that reposting material for the purposes of discussion does not constitute infringement.

“Many of the defendants are ill-informed about copyright law,” Mr. Goldman said. “They’re not trying to compete with a newspaper. They just don’t know the rules.” Mr. Goldman informally advised a company that was sued by Righthaven and settled out of court.

In an amicus brief filed on behalf of the Media Bloggers Association regarding a Righthaven suit in Nevada, Marc J. Randazza, a lawyer specializing in First Amendment issues, accused the company of acquiring copyrights for the sole purpose of going after defendants who could not afford legal help.

“Nobody can seriously believe that Righthaven, which publishes nothing anywhere, has acquired the full ownership of the articles it sues upon,” wrote Mr. Randazza, whose legal group recently filed motions to dismiss two other Righthaven cases, accusing the company of making fraudulent copyright claims.

Mr. Gibson denies that unwitting bloggers are a particular target and points to lawsuits like the one against Mr. Drudge. Righthaven accused Mr. Drudge of posting the airport pat-down photo on his Drudge Report Web site without permission. The suit was settled out of court, Mr. Gibson said.“The harm of viewer diversion has been achieved whether it is being shown on Momandpop.com or Chicagotribune.com,” he said. “If the accusation were true that we were just a purely greedy operation not advancing the interests of copyright law, then we wouldn’t be addressing viewer diversion.”

Ms. Glines said that MediaNews “reviewed every violation and only approved actions against sites that carried advertising and were not charities.”

Rachel Bjorklund wishes she had been sent a simple e-mail rather than slapped with a lawsuit. A stay-at-home mother in Oregon, Ms. Bjorklund was sued by Righthaven in March after she posted the airport pat-down photo on her blog, thoughtsfromaconservativemom.com.

“My reaction was, ‘Why didn’t you just contact me and ask me to take it down?’ That would have been no problem,” said Ms. Bjorklund, who plans to challenge the suit.

Mr. Hill, who suffers from autism and diabetes and lives on disability checks with his mother, said at that at one point Righthaven had offered to settle for $6,000, but he refused. A Colorado lawyer, David Kerr, has been defending him pro bono.

A federal judge presiding over the case criticized Righthaven last month for using the courts to settle with defendants scared of the potential cost of litigation. Shortly after, Righthaven moved to voluntarily drop the suit, saying it had not been aware of Mr. Hill’s health problems. But Righthaven also stated in court filings that a dismissal did not exonerate others it was suing and warned Mr. Hill against continuing to use copyrighted material.

Mr. Hill recently decided to revive his Web site, uswgo.com, where he posts links to various political articles and his own musings, which he had taken down after being sued. On the site, there is a notice explaining Mr. Hill’s belief that material posted there, even without permission, constitutes fair use. This time, though, Mr. Hill said he’s steering clear of any image or story that could cause him trouble with Righthaven.

This story originally appeared in The New York Times

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