Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?

Before there was an Internet, wholesale infringing on someone’s copyright could be a time consuming and capital intensive endeavor. Through most of the last century, would-be infringers needed a printing press, and even with the advent of the mimeograph and copy machines, paper and distribution channels were required.  But today, a copyrighted work that is posted online can be easily copied and distributed throughout the world with a few clicks of a mouse.  In the case of pirated software and other high-ticket items, it may make sense to go after the infringers. But what about infringers that cut and paste articles from online newspapers and 


magazines on their own websites or blogs?  Is it cost effective to take them to court?

In March 2010, Stephens Media, publisher of the Las Vegas Review-Journal, began selling copyrights to that paper’s content to Righthaven, LLC, a company whose CEO, Steve Gibson, is an attorney practicing law in Nevada. Since then , Righthaven has been scouring the Internet for Review-Journal articles that have been posted without permission from the copyright holder. By the end of July 2010, Righthaven had filed at least 80 copyright infringement lawsuits in Nevada federal district court against a variety of website owners and bloggers.

Gibson’s strategy for going after copyright infringers is a bit unorthodox. The standard procedure before filing a copyright infringement suit is to send a cease and desist letter, giving infringers an opportunity to stop their activities before taking them to court. In addition, under the Digital Millennium Copyright Act (“DMCA”), there are provisions for sending a “takedown notice” to an infringing website before taking further legal action. Righthaven has apparently done neither, choosing instead to serve its infringers with federal lawsuits without prior warning. Faced with the prospect of going to trial on Righthaven’s turf, many of the defendants have chosen to settle early in the case.

Since few of these infringers make any money from their websites or blogs, and even fewer, if any, operate online publications that directly compete with the Review-Journal, some argue that such cutting and pasting could be defended under the “fair use doctrine” of the U.S. Copyright Act. Under this doctrine, some copying without permission is considered “fair use” (and therefore not infringement) depending on the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work being copied, and the effect of that copying has on the potential value of the copyrighted work.  Since many of the website owners and bloggers seek only to inform and educate their readers and not to turn a profit, fair use might be a viable defense in some cases.  But from Righthaven’s point of view, the unauthorized posting of its copyrighted content greatly reduces the potential value of that content by driving traffic away from the Review-Journal’s website and decreasing its advertising revenues.

It remains to be seen whether Gibson’s strategy will prove profitable for Righthaven over the long haul. In a similar move against music file sharing, the Recording Industry Association of America (RIAA) sued approximately 20,000 infringers over five years, spending $64 million in legal costs but only recovering $1.3 million in damages and settlements. However, if suing for infringement of Review-Journal content turns out to be a money making operation, Stephens Media controls over 70 other newspapers in nine states which could join the fray, with the possibility of other media groups to follow. In the meantime, website owners and bloggers can avoid possible liability to linking to articles of interest rather than copying the entire content directly onto their sites.  Getting permission to use content is the safest course.

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