Posted By: Anthony Eskridge
Copyright trolling is the act of purchasing the copyright to material and suing infringers for profit. Intellectual property start-up Righthaven LLC, acting on behalf of Stephens Media, owner of the Las Vegas Review-Journal, has sued over a hundred Internet sites over copyright infringement of the Review-Journal’s online news articles. What Righthaven is doing is certainly lawful. But is it in the pursuit of justice? Or is it a flotation device for a drowning newspaper industry?
The newspaper business has been struggling for a while now. Given the ease of access to news afforded by the Internet, one should not be surprised that a print newspaper subscriber faces a tough question when considering why she is still receiving a copy on her driveway every day when the same information is available online for no more than she already pays for her Internet access.
Many subscribers have canceled their subscriptions, and newspapers have felt that impact. Acknowledging the need to adapt or die, newspapers place their articles online with advertising to support all the costs of reporting the news. Even though the companies now need to print fewer physical papers, serving the news online is not free. The reporters still need to be paid and the hosting costs can be considerable. To offset these costs, the news sites run advertisements against their news content.
But a hidden cost in making news available online is that anyone who is reading it can copy it. (In fact, simply by viewing it, the reader has already made a copy into the computer’s RAM.) The ease of copying is a practical problem for the paper. Ideally, the payment for the news story would be the reader’s viewing and clicking the advertisements. But if a story is copied and pasted to another site, where there are no advertisements offsetting the newspaper’s cost to produce the article, the newspaper receives no compensation.
Two arenas of Internet news discussion are found in weblogs and discussion forums. When users of these sites want to discuss the news, they will often copy the entirety of a news article into their posts to save their readers a mouse click, a new tab, and the time it takes to load a page. Wrongly believing no harm to come of this practice, many Internet users do this with some regularity.
Stephens Media, owner of the Las Vegas Review-Journal, has felt the financial squeeze just as much as anyone else. Stephens Media’s then-CEO, Sherman Frederick, took some time to write a blog post addressing his concerns at the outset of the lawsuits. (Though he makes valid points about the cost of publishing, he makes an inappropriate and trite comparison between copyright infringement and car theft.)
To combat the infringement, Stephens Media contracted with Righthaven, a start-up concentrating in protecting intellectual property rights. Righthaven searched the Internet for sites that posted copies of Las Vegas Review-Journal news articles. They then purchased the copyright covering the copied LVRJ articles from Stephens Media before filing suit against the offending sites. (The copyright purchase allowed Righthaven to seek statutory damages under 17 U.S.C. § 504.)
Righthaven proceeded to sue over one hundred websites including weblogs and discussion forums where infringing material had been posted, demanding tens of thousands of dollars and forfeiture of the domain name from each site. Those sites with the means and legal grounds to defend have filed answers. These sites are in the minority, however. Many, if not most, will not be able to defend successfully.
There is no dispute over whether verbatim copying of protected material is an infringement of a copyright holder’s exclusive rights. It is. A question does exist of whether fair use is an affirmative defense in many of these cases. Another question is the applicability of the Digital Millennium Copyright Act’s safe harbor provision. Failing that, some sites may be able to defend through 1995’s Netcom decision.
Between the two main types of sites sued, small weblogs run by a single person are in the toughest position to defend. They can only use the fair use provision of the copyright act, which will likely fail them. There are four factors in finding fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the use compared to the work, and (4) the effect of the use on the market for the work. In situations where a blog has posted the entire news article, the blog completely fails the third and fourth factors, which likely destroys the blog’s defense.
On the other hand, discussion forums are likely able to defend with greater ease. Not only do they have the fair use protections, but also the DMCA safe harbor provision and the Netcom decision. They also often have more financial resources with which to defend their cases.
The DMCA affords an online service provider, like a discussion forum, protection from liability based on its users infringing activities as long as: (1) the site does not know about or conduct the infringing activity and does not financially benefit from it, (2) disables access to the infringement as soon as it learns of it, (3) has registered an agent through the copyright office to receive DMCA takedown notices, and (4) informs its users of its copyright infringement policy.
The Netcom decision holds that an Internet online service provider is not directly or vicariously liable for its users’ infringement as long as the OSP did not copy the work on its own and did not financially benefit from the infringement. This argument is a last resort, however, because it is from the Northern District of California and not binding on any other district.
According to righthavenlawsuits.com, as of November 17, 76 of the 177 filed suits have been closed. Those that settle, do so either because the defendants felt they had no defense or because they could not afford to defend. Of course, this is exactly what Righthaven wants. Against the greater concern of justice, it seems that Righthaven’s tactics have paid off.