Think before You Quote – Even in Comments

If you create content – or even post comments in blogs – and include quotes from someone else – be aware.  Although this particular company may well be on its last legs, there may be others out there.

It’s an ugly 18-month saga that, fortunately, seems to be coming to a close.

The players:

•  Righthaven LLC, a Las Vegas-based firm founded in March of 2010, solely for the purpose of suing blogs and websites that re-post any newspaper content without permission from their media clients.

•  Stephens Media, which owns 70 papers in nine states, including the Las Vegas Review-Journal.

•  MediaNews Group, the second-largest US newspaper chain, publisher of the Denver Post and 50 other papers.

•  Hapless bloggers and website owners, as well as those who comment on them.

Act I:

Righthaven LLC is formed in March of 2010, with help from a $500,000 investment from Stephens Media, their first client.  The idea is simple; if newspapers can’t make enough money up front through advertisers and subscribers, monetize the content on the backend through litigation, going after those who unlawfully use their copyrighted material.

Newspaper chains will sell their copyrights to Righthaven for the express purpose of suing over the content, but according to the contract, newspapers retain all rights to control, license and print the material, while Righthaven can only use it to sue.  The agreement also states that any proceeds from settlements or legal judgments are split 50-50 between Righthaven and the newspaper company.  What could go wrong?

Act II:

Righthaven immediately goes about the business of trolling the web for copyright infringements, serving up lawsuits to as many as 300 offenders over the next year, mostly in Nevada and Colorado.  They go after bloggers and websites, even if visitors posted the material in comments or discussion boards.  The size of the infraction also is irrelevant, with no distinction made between small portions or entire articles.

Defendants are sued for tens-of-thousands of dollars, some as much as $150,000, the largest damages allowed.  At least 100 of the accused settle out-of-court for undisclosed sums, fearing expensive legal battles.

Act III:

Righthaven’s profit model and business begin to unravel by April of this year.  Defendants start to fight back, and the Electronic Frontier Foundation begins investigating, exposing large legal flaws in the company’s contractual agreements and lawsuits.

By June, two federal judges in Nevada have ruled Righthaven has no standing to bring a lawsuit, because the newspapers still retain copyright ownership.  The rulings, based on copyright law, state that, “a copyright owner cannot assign a bare right to sue.”  Most of Righthaven’s cases are dismissed, and in July the company is sanctioned by the court and fined $5,000.

Epilogue:

This week the new chief executive of MediaNews Group, John Paton, said he was severing ties with Righthaven saying, “It was a dumb idea.”  Going further he said, “The issues about copyright are real, but the idea that you would hire someone on an-essentially-success fee to run around and sue people at will, who may or may not have infringed as a way of protecting yourself…does not reflect how news is created and disseminated in the modern world.”

Aside from the questionable ethical nature of Righthaven’s business, it also was based on a flawed understanding of copyright law.  Righthaven based their model on so-called patent-troll companies, who buy up patents only so they can sue others and turn a profit.  The key, however, is that they purchase the patent and own it.  Righthaven owned nothing, since the newspapers still reserved all rights of usage.

Righthaven has not filed a lawsuit in over two months, and has not won a single case.  Discredited and with only one client, it looks to be on its way out.  Bloggers who settled with the company are considering options for getting their money back, now that they know the suits were baseless.

The takeaway – which should not be interpreted as legal advice:

•  Protect yourself.  If you have a blog or website, there is a simple, relatively cheap way to inoculate yourself from infringement committed by those, who comment or post on your site.  The Digital Millennium Copyright Act protects you from civil copyright liability for user content, and you can easily register a DMCA agent.  Visit http://www.copyright.gov, download the appropriate form and send it with a $105 check to Copyright RRP, Box 71537, Washington, DC 20024.

•  Fair use practices allow you to reproduce and use a copyrighted work for nonprofit or educational purposes.  It’s usually acceptable to use a copyrighted work in teaching, research, or for criticism and commentary.  For the most part, non-commercial use that does not affect the potential market for or value of the work is considered legal.

•  Most media outlets and people who create content don’t object to someone quoting short passages from articles, stories or speeches, especially in the context of discussion or criticism.  However, attributing credit and providing a link to the original source are welcome courtesies that can show good intention and save you some trouble.