By: Ellen Sterling
Longtime Las Vegas journalist Ron Futrell is angry.
The former television sports and news anchor is one of 275 (as of early May) defendants being sued by Righthaven, LLC and either the Las Vegas Review-Journal or The Denver Post for copyright infringement.
Righthaven is a Las Vegas-based corporation that bills itself as “the nation’s pre-eminent copyright enforcer” and has sought out websites that post content from its clients’ newspaper websites in, Futrell claims, a manner that violates the fair use provision of federal copyright law. When Futrell talks or writes about his experience with Righthaven, it is clear that “enforcer” is a word he has taken to heart.
In full compliance with federal law, Righthaven does not first ask the website to remove the offending article. It simply sues.
Last year on BigJournalism.com, Futrell, after being sued for $75,000 and forfeiture of his domain name, wrote, “No warning, no request to take down the material, no shot across the bow — it’s nuclear right out of the box. Virtually every other newspaper across the country asks ‘offending’ websites to just take down the material, and lawsuits are used only as a last resort.”
In introducing Righthaven to readers on May 28, 2010, former Review-Journal publisher Sherman Frederick wrote a blog post titled “Copyright theft: We’re not taking it anymore” (which Editor & Publisher obtained written consent to quote).
To explain copyright theft he said: “Look at it this way. Say I owned a beautiful 1967 Corvette and kept it parked in my front yard.
And you, being a Corvette enthusiast, saw my Vette from the street. You stopped and stood on the sidewalk admiring it. You liked it so much you called friends and gave them my address in case they also wanted to drive over for a gander.
There’d be nothing wrong with that. I like my ‘67 Vette, and I keep it in the front yard because I like people to see it.
But then, you entered my front yard, climbed into the front seat, and drove it away.
I’m absolutely, 100 percent not OK with that. In fact, I’m calling the police and reporting that you stole my car.
Every jury in the land would convict you.”
Futrell had posted an article from the Review-Journal with credit and a link to the original. He calls his website, LocalsLoveVegas.com, a “hobby site.”
“It’s very grassroots and very small. I do it for fun,” he said. “The R-J has used stories I broke first and gave me credit. I took that as a compliment. Conversely, I’m not stealing his Corvette. I’m putting a little gas in it. That’s all.”
“But,” he said, “what’s absolutely vital to this story is that Righthaven and the newspapers that work with them put on the white hat saying they’re the good guys protecting journalism. But the financial interest they have blows up their whole thesis.”
Since it began its copyright suits, Righthaven has sued website owners, individual message board posters, and bloggers. Among those who have been sued are the Nevada Democratic Party; Nevada Tea Party senate candidate Sharron Angle (whom Righthaven later endorsed in her attempt to defeat Senate Majority Leader Harry Reid); a hobby blogger who blogs about cats; Matt Drudge; Thomas DiBiase, owner of the website NoBodyCases.com, a lawyer and legal consultant who specializes in prosecuting cases where no body has been found; and the Oregon nonprofit Center for Intercultural Organizing (CIO), a group formed to educate immigrants about issues they may face in the United States. The CIO had posted an article about the relationship between the Las Vegas immigrant population and its police department.
The Denver Post has published a fair use statement that clearly sets forth its rules. The Review-Journal does not. Instead, as part of a 1,900+-word privacy statement on parent company Stephens Media’s website, it states its ownership of all material printed in its publications and sets forth the rules for use of same — “solely for personal, non-commercial use.” Website owners are advised they may link to content from Stephens Media LLC “provided you agree to delete the link upon request from us.” Anything other than a link is prohibited without written permission from the company.
Many of the defendants argue that Righthaven has no standing to sue, as it does not own the copyright for any purpose other than filing suit. The Strategic Alliance Agreement between Righthaven LLC and Stephens Media LLC was unsealed by a judge in April. It grants Righthaven the right to sue on copyrights owned by Stephens Media and revealed that proceeds from any successful suits will be split 50-50, less expenses incurred by Righthaven.
Righthaven’s suit against the CIO was dismissed in March on the grounds that the article was used, in keeping with fair use law, for educational purposes and further, that the article “is no longer owned by a newspaper; and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits.”
Mark Hinueber is vice-president and general counsel of Stephens Media LLC. He said, “We believe that Righthaven has brought increased attention to the issues surrounding copyrights.”
He acknowledged that “a lot of journalists want to see their work out there. But original journalism costs money. We have the right to monetize the work product of our journalists.”
Hinueber also elaborated on the provision in the privacy statement that allows linking to Stephens Media content.
“If you want to use the headline and first paragraph of an article of ours, we don’t care. We’ll write a letter and give you a license agreement. We’re not trying to squelch opinion and tell people they can never use what they see,” he said. “Copyright law is old and people are presumed to know it. To post work that you do not own on your website is intellectually dishonest, violates copyright laws, and undercuts serious journalism. The argument that they give us wider exposure is wrong. At the end of the day (people who see our articles on another website) never come to our website.”
Hinueber points to Facebook as a website that “does it right.” When a user posts a link to an article, a video, or another website, Facebook automatically posts only the headline, the source domain name, and the first sentence of the article.
He said that the response to the Righthaven suits by defendants who say if they’d been warned they’d have removed the copyrighted material is understandable, but “the law is the law.” He said, “I don’t control Righthaven. These are issues to be tested in court.”
Dollars and Sense
Professor Eric Goldman of Santa Clara (Calif.) Law School, who specializes in Internet and intellectual property law, said, “There’s a broad category of unanswered questions with Righthaven. When we think about publishing content there is mass media and word-of-mouth media. The former was almost always commercial and the latter rarely was. Reach often made the distinction between mass and word-of-mouth media. That has broken down today. The correlation between reach and commercial no longer really applies. The difference between a professional blogger and a hobby blogger is on a continuum.”
He pointed out that although everyone has the potential to reach a lot of people, not everyone does. When asked if it makes sense for Righthaven to look for copyright violations and start blasting awayin court instead of going about it differently, Goldman is firm.
“No, it doesn’t make sense, because I don’t think it’s going to be profitable for Righthaven. If you look at the cost of bringing suit, plus the overall overhead and compare that to the dollar value of what they can get, minus the split they have to give to the newspaper, it doesn’t work,” he said. “There are expenses such as the cost of suing, out-of-pocket expenses plus the possibility of what has to be paid to the defendant if Righthaven loses which, I believe, is inevitable. Does it make sense for the newspapers to participate in this scheme? Emphatically no. First, it’s unclear how much they will profit in the end. On the revenue side they’re not going to make a ton of money on the litigation. On the expense side, some of the people who have been republishing articles, photos, or graphics give links back to the newspaper. They will lose in the Google algorithm and have fewer links to their sites. People will stop talking about the content of their newspaper.”
“In the end,” Goldman added, “we can look at a failure of copyright law or look at the Internet as reflecting emerging technologies and social practices that we want to encourage. To that extent, copyright law isn’t broken. The only thing that’s broken is the expectation of the incumbents — the newspapers — who have been fat and happy under the old system.”
Kurt Opsahl is senior staff attorney with the Electronic Frontier Foundation (EFF.org), a group he described as “a civil liberties organization defending rights in a digital world — fair use, free speech, privacy, innovation.” It was established in 1990, following an incident in which the owner of an electronic bulletin board ran afoul of the government, and the Secret Service raided his office.
With EFF, Opsahl has defended some suits brought by Righthaven and said, “The issue is whether or not the agreement Righthaven reached with Stephens Media gives them the right to sue. We believe that since under the law you can’t just transfer the right to sue, the effect of the Strategic Alliance between them is that Righthaven can sue, but Stephens Media still owns the articles.”
Opsahl is defending a current Righthaven suit against Democratic Underground, an online forum established after the 2000 presidential election. As of May 24, the site had 171,338 user registrations and 54,580,904 posts since January 2001.
The site was sued after one user, Opsahl said, posted five sentences from a 50-sentence article in the Review-Journal. Going back to the car analogy employed by Frederickto explain why his paper was joining forces with Righthaven, Opsahl said, “The car metaphor is fundamentally flawed. If you have a car, I don’t have it. Electronic property is non-rivalrous. When you copy something it doesn’t deprive the original owner of the property. Posting such material fosters public debate and can be advantageous to the owner.”
He said he believes that “Righthaven suing for ownership of a domain name is ludicrous. There’s no basis in law to do that, and two judges have told them so. Just consider DemocraticUnderground.com. Neither Righthaven nor the Review-Journal would have any use for it. They sued the Drudge Report because Drudge posted a thumbnail of a photo from the Denver Post. If the reader clicked on it, he or she was taken immediately to the story on the Denver Post’s website. Drudge settled with Righthaven.”
Opsahl said that’s a tragic aspect of these suits.
“There are many people who are engaged in fair uses who might, in light of these lawsuits, be afraid,” he said. “The cost of defense will be prohibitive and might cause an economic situation where a choice to settle is made based on those economics.”
First Amendment attorney Marc Randazza, whose first career was in journalism and has a blog called The Legal Satyricon, agrees with Opsahl that the car analogy may be a poor one, but said, “I would let people take a photo of the car. Let’s say you charged $2.95 to take a picture but that someone drove by and took a photo without paying because they didn’t see your sign about the fee. Do you hit them for $75,000 in damages? Why?”
Among others sued by Righthaven, Randazza represented NORML, the National Organization for the Reform of Marijuana Laws. They settled for $2,100 and retained their domain name. But Randazza is still representing defendants and is not at all satisfied with the revised Strategic Agreement between Righthaven and Stephens Media released in court May 9.
“The document itself internally contradicts the position Righthaven has taken that they are the owner of the copyrights. EFF is right when they defend fair use. The new agreement merely rearranges the deck chairs on the Titanic. And, there is no legal requirement that you send a cease-and-desist letter,” Randazza said. “In these cases, even if they did anything wrong, many of the defendants didn’t know it. Righthaven’s suits have nothing to do with copyrights. They’re about profit. Their cases are questionable from a free speech standpoint and from a journalistic standpoint. When they’re suing people who are quoted in an article for posting the article in which they were quoted, it doesn’t make sense.”
The Golden Rule
MediaNews Group, Inc., owner of the Denver Post, did not respond to requests for comment on Righthaven, and a national organization for publishers chose not to respond. Laurie Babinski, an attorney with the law firm of Baker Hostetler in Washington, D.C., who represents the Society of Professional Journalists, said, “Just because you’re on the Internet doesn’t mean the rules of copyright don’t apply. You have to consider that when dealing with other people’s content. You have to consider what you’re taking.”
One career journalist, who asked that her name not be used, said she sees two types of writers in the world today. “There are professional journalists who have made their living as journalists and have the credentials to prove it,” she said. “Then, there are people who — with the advent of the Internet — have blogs but who have not been schooled in libel, fair use, sourcing, etc. — things we journalists learned about because we quickly became aware that if we didn’t pay attention to these basics we’d be fired. We live by certain guidelines that non-professionals don’t know.
“The amateur bloggers are not journalists. That doesn’t mean they’re not good writers, but it does mean they probably don’t know the rules we have learned over the years. Libel and plagiarism — and avoiding same — isn’t in their sphere of knowledge.”
Despite her knowledge of the libel laws and support for a company’s right to defend its copyrights, she said that Righthaven has approached the problem heavy-handedly.
“The companies that hire Righthaven have every right to protect their copyrights. I know that the law does not require a letter of warning, but when you’re dealing with amateurs it is simple courtesy to send a letter requesting they cease and desist,” she said. “Such a letter would serve as an education because it would include information on how to get permission to reprint material. Then, if they do not stop posting, or if they don’t remove what they’ve already posted, proceed with legal remedies.
“That is just good public relations.”
However, this journalist would like to see a firm such as Righthaven work on contingency. “Small publications and freelancers are the most vulnerable to this sort of copyright violation. It’s happened to me,” she said. “I’ve seen my copyrighted work online in violation of the fair use law. But, I’m not a lawyer and hiring a lawyer is too expensive, so I’ve just let it go. As a result, I am very careful about what I post.”
Until everyone learns copyrights and “copywrongs,” the issue remains what guidelines to use.
As Babinski said, “It’s a bit like the golden rule. Don’t take from others anything you wouldn’t want taken from you.”
U.S. Copyright Law
Under the federal copyright law, fair use is determined by four criteria set out in section 107 of that law:
(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 government’s fact sheet on fair use of copyrighted works notes, “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
Ellen Sterling is an award-winning journalist. A New Yorker, she’s now living in Las Vegas, where she blogs on the Huffington Post, reviews shows and movies, and freelances. Reach her at firstname.lastname@example.org.