Friday, August 6, 2010

Avoiding the Wrath of Righthaven

There has been a lot of discussion in the Las Vegas area (and nationwide) about the numerous copyright infringement lawsuits filed by a Las Vegas company named Righthaven, LLC. As of August 4, 2010, Righthaven had filed approximately 86 lawsuits against various website operators claiming copyright infringement. While not immediate apparent from the lawsuits, Righthaven is essentially a company established by Stephens Media LLC, the owner of numerous newspaper including the Las Vegas Review Journal (the “RJ”), in order to go after any and all third party websites that improperly excerpt all or part of the copyrighted articles from the RJ.

Many people who post content online may be under the impression that they can lawfully post all or part of an article originally published in the RJ so long as appropriate credit to the RJ is given (as well as possibly a link back to where the article appeared on the RJ’s website). In actuality, such actions may constitute copyright infringement.

The RJ just accepted this type of copyright infringement for the longest time as an unfortunate byproduct of the Internet. However, earlier this year, the RJ apparently had a change of heart and is now aggressively going after anybody who posts any of its copyrighted content online. A blog posting by Sherman Frederick, the publisher of the RJ, posted in May 2010 explained the RJ’s new aggressive actions towards reposting of the RJ’s copyrighted content.
We grubstaked and contracted with a company called Righthaven. It's a local technology company whose only job is to protect copyrighted content. It is our primary hope that Righthaven will stop people from stealing our stuff. It is our secondary hope, if Righthaven shows continued success, that it will find other clients looking for a solution to the theft of copyrighted material.
To describe Righthaven as a “technology company” is probably a glamorization of what is essentially a company more akin to a law firm established by the RJ to be the assignee of various copyrighted articles so that Righthaven can obtain copyright registrations on such articles and then file lawsuits in federal court for copyright infringement. By establishing a separate company, not only can the RJ keep a distance from and avoid being associated directly with the aggressive tactics of Righthaven, it can also have what is (most likely) a law firm working on a contingency basis based on all of the settlement amounts obtained from the unsuspecting website operators who find themselves looking at either paying a quick nuisance settlement or spending thousands of dollars of legal fees defending what may possibly be fair use, but what is more likely than not a clear cut case of copyright infringement (albeit unintentional on the part of the person who just wanted to cite to one of the RJ’s articles). And even in those cases where the articles were posted by third parties under circumstances where the website operator may be immune under the Digital Millennium Copyright Act (“DMCA”), it still often makes more sense to just give into Righthaven’s demands than to pay the cost to prove that no liability exists.

Righthaven’s agenda to obtain quick and easy cash settlements (in addition to having its copyrighted content taken down from those posting without permission) is clear by the fact that Righthaven never contacts any of these websites and orders them to take down the infringing content nor sends any kind of cease and desist letter to takedown request against the website. Of course, Righthaven is under no obligation to do so, but at the same time, if such letters were sent out (something that apparently, rival newspaper company Greenspun Media does with much success), then Righthaven knows that the website operators are likely to quickly comply and take down the content – without Righthaven getting any “compensation” for the use of its articles (or compensation to offset the time and effort for sending out such notices). Instead, the party is immediately named as a defendant in a lawsuit (which only costs $350 to file, not including the time it might take for a paralegal to modify Righthaven’s boilerplate legal complaint to the facts and circumstances of each case), which puts the named defendant in the serious situation of having to spend time and money addressing these allegations or else face a default judgment by the court. Rather than fight against Righthaven and obtain what is at best likely to be pyrrhic victory, most defendants will choose to just settle.

Some may be asking how the RJ can claim a copyright over the news that it covers. While the RJ cannot claim copyright rights over news events, it can claim a copyright to the particular way that one of its employed writers describes a news event. Accordingly, while you can describe a particular news event on your website that you may have read about in the RJ, you cannot describe such news by using the precise copyrighted written text that the RJ used to describe the news.

And while copyright law does protect certain uses of a copyrighted work as “fair use,” such as when a work is reproduced for purposes of criticism, comment, news reporting, teaching, scholarship, and research, whether a particular use constitutes “fair use” actually involves an analysis of several factors used by courts including the purpose and character of the use (whether use is commercial or for nonprofit purposes), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. §107. One factor often overlooked by many website operators is the commercial nature of their websites. Think your website is non-commercial? – well, if you have pay-per-click ads being displayed on your website and you are generating some revenue from the website, then your website is more commercial than you think.

So what is a website to do in order to avoid the “wrath” of Righthaven if you want to mention an RJ news article on your website? While there is nothing clearly outlined on the RJ’s own website, Mark Hinueber, the Vice President and General Counsel for Stephens Media, recently provided some guidance for third parties regarding how to properly cite review journal articles.

Mr. Hinueber is informing interested parties that the appropriate procedure for using stories published in the RJ (and any other publication owned by Stephens Media) is to post the headline of the story and then the first paragraph with a link to the original story. Accordingly, if you wish to quote from an RJ story on your website – and you do not otherwise obtain a non-exclusive license from the RJ to post all or part of the story on your website – then you should post only the headline, the first paragraph of the story, and a link to the RJ’s website where the original story can be found.

The following example illustrates what is acceptable to the RJ:
$145 MILLION BUDGET SHORTFALL: Union proposes pay cut for all employees in Clark County School District
A 1.5 percent pay cut by all 38,500 employees in the Clark County School District would prevent layoffs and resolve the budget crisis for the 2010-11 school year, according to a proposal from the union representing school principals and administrators.
The rest of the article can be viewed by clicking here.
For those website owners that are not actively involved in posting content, but which maintain a website which allows third parties to post content to online forums, then you need to confirm that you have taken the proper steps to ensure that your website is immune from any claims for damages for copyright infringement under the safe harbor provisions of the DMCA. The DMCA safe harbor provisions require a copyright owner to first give notice to the website owner that copyrighted content appears on its website and an opportunity to take down the material before proceeding with a lawsuit.

Many website owners may be under the impression that they are protected by the DMCA when in reality, there are very specific requirements must be met before a website owner can invoke the DMCA safe harbor provisions. See 17 U.S.C. §512(c).

In particular, the safe harbor only applies to service providers who have designated an agent to receive notifications of claimed infringement and providing information about the agent (name, address, phone number, and electronic mail address of the agent) to the Register of Copyrights, which maintains a directory of agents available for publication inspection. See 17 U.S.C. §512(c)(2). This list can be viewed here.

So it is not enough to just name an agent in your terms of use policy. You must go a step further and provide the name of this agent to the Copyright Office. The Copyright Office has forms available online for designating an agent – Interim Designation of Agent to Receive Notification of Claimed Infringement – and for amending the designated agent – Amended Interim Designation of Agent to Receive Notification of Claimed Infringement. The filing fee is $105 and an additional $10 for group of 30 or fewer alternative names for the service provider. The designation can be mailed to Copyright RRP, P.O. Box 71537, Washington, DC 20024. More information from the Copyright Office on the requirement of designating an agent to receive notification of claims of infringement can be viewed here.

Once you have designated the proper agent, if a user to your website posts an RJ article that infringes the RJ’s or Righthaven’s copyright rights, then the RJ or Righthaven must provide you with the proper takedown notice and allow the website owner to remove the infringing content before proceeding with litigation.

Righthaven has likely been targeting those websites where either the website owner directly posted the RJ’s article or, to the extent a third party may have posted the article, then the website did not have an agent designated to receive notification of claimed infringement, and thus cannot invoke the DMCA safe harbor. (Indeed, some of the more recent complaints filed by Righthaven include factual allegations about the Defendants not instituting any proactive policy intending to address the posting by others of copyright-infringing content).

For those that have to date flown under the Righthaven radar, you can begin taking immediate steps to avoid facing any kind of copyright infringement liability. However, if you are the unfortunate recipient of a notice that a lawsuit has been filed against you by Righthaven for copyright infringement, you should take the matter seriously and immediately consult with legal counsel familiar with copyright law and with Righthaven. If you choose not to respond to the complaint, you could face a default judgment being rendered against you by the court that could go as high as $150,000 per infringement.

[08/09/10 Update: Las Vegas Sun has an article that includes a reference to this particular blog post and other websites dedicated to the Righthaven.]


fairuser said...

Thank you for explaining this. Can you also clarify the actions a website -- with no third party party postings -- should take? If a website with no third party postings clearly outlines "where" and "to whom" a copyright infringement should be sent to, are there additional steps for this webmaster? Specifically, does this webmaster ALSO need a designated agent filed with the U.S. Copyright Office?

NightSapper said...

What if you cannot afford a lawyer - or a settlement that they demand ($2000 or so)? Being unemployed or unable to work tends to put one in short situation, unable to fly to Nevada to defend ones self, unable to contract someone to represent ones self. Does that force a person into bankruptcy to avoid losing their home, their only asset? What sort of a "justice" system allows such crushing of the little guy by lawyers? What evil SOBs would do something like that?

This clearly demonstrates the difference between "legal things allowed" and common-sense "right thing to do", and is the sort of thing that gives all lawyers a bad name. I know it makes me personally feel that most lawyers should all be rounded up and ... (best left to your imagination).

hhh said...

Hi Ryan! If I realized this error in June and took appropriate action to eliminate any infringement based on the new guidelines the RJ has posted. Would there be any recourse to me NOW in August? If Righthaven saw my site before I corrected it, can they still come after me, and if so, for how long should I be scared? I am like the rest of the world and thought if I gave them credit for the work and a link back to the original article on their site that I was doing the right thing.

MIke said...

There's a really simple solution to the predatory lawsuits. Boycott the RJ. I'm canceling my subscription and suggest everyone else do the same. How stupid is it that someone in Virginia can't read a posted article from the RJ of some interest? Boycott the RJ entirely and then they have no revenue and nothing to "protect"