A blogger reads an online news article and reposts it on his website.
It happens every day, and probably seems harmless enough to the blogger. But reposting an entire article will likely violate copyright law.
News organizations that have paid reporters and editors to gather and report the stories are understandably frustrated when their copyrights have been infringed. But they differ on how to handle perceived infringement, with options including ignoring single offenses, sending formal cease-and-desist letters, filing an occasional lawsuit and embarking on sweeping litigation.
Two newspaper chains, MediaNews Group and Stephens Media, took the latter strategy. They partnered with Righthaven LLC, a Las Vegas-based law firm, in 2010, and sued hundreds of bloggers who reposted content from their newspapers. The bloggers had not registered for a Digital Millennium Copyright Act “safe-harbor” provision that could have exempted them from liability in these suits.
Righthaven’s approach drew criticism from many. The firm sued people before asking them to remove content, and targeted small web operations that either may not have known that they were doing anything wrong or whose actions may have been protected by the “fair-use” doctrine.
But Righthaven’s strategy has had mixed results in court, and the firm appears to be going out of business. The firm owes defendants a reported $200,000 and more in attorney fees and a judge appointed a receiver, who ordered the company to sell its domain name to help pay these debts.
The company’s plight shows that a no-compromise, litigate-only strategy may not be the most effective way for newspapers to handle perceived copyright infringement, but leaves unanswered questions as to how and when the industry should respond to potential piracy.
Righthaven partnered with two large newspaper publishing companies: MediaNews, which owns The Denver Post; and Stephens, which owns the Las Vegas Review-Journal.
Stephens officials said they joined with Righthaven to protect against potential threats to its business model.
“If you dilute the value of the traffic of your website, you have less eyeballs looking at your ad revenue, which pays for the serious journalism done by news companies,” said Mark Hinueber, vice-president and general counsel at Stephens.
The news companies had assigned to Righthaven the right to sue potential copyright infringers, and the firm filed about 275 suits against people who had reposted all or parts of articles.
Righthaven cast a wide net, suing small sites with limited readership that may have reposted just one article or photograph. In one case, the firm sued an autistic teenager in North Carolina. In another, it sued a woman who writes a blog about cats from the feline’s point of view.
A number of defendants in Righthaven’s suits had not taken the steps needed to qualify for a DMCA “safe-harbor” provision that can protect them from liability for copyright infringement.
Under the DMCA, if a website owner pays $105 to register with the U.S. Copyright Office, publishes a policy for addressing repeated infringing activity, and quickly removes materials when a copyright owner sends a take-down notice, he can avoid liability for posting copyrighted material. If the website owner thinks he was within his right in posting the contents, he can file a counter-notice to the copyright owner in an attempt to keep the materials online.
New media advocates cautioned that Righthaven’s aggressive approach to perceived copyright infringement ignores the fact that many bloggers do not know about DMCA regulations.
“There’s just a lack of understanding from reporters and publishers as to what their obligations are and what their protections are,” said Kevin Davis, CEO and executive director of the Investigative News Network, a consortium of non-profit journalism outlets. “What that means to me really is that there needs to be a concerted effort to better educate folks.”
Of the more than 60 members of the Investigative News Network, only a handful have policies regarding repeat copyright infringement posted on their websites, as is required to take advantage of the DMCA’ s safe-harbor provisions.
Though Righthaven reportedly settled about 100 early cases for about $5,000 dollars each, courts have rejected its legal theories for two main reasons.
First, courts found that Righthaven lacked standing to sue because the fine print of the contracts between the firm and the news companies showed that MediaNews and Stephens had maintained control of the copyrights. Under the DMCA, someone who is assigned only a right to sue does not have standing to sue for copyright infringement.
Second, courts found that the “fair-use” doctrine protected some of the bloggers Righthaven had sued. In determining whether the use was “fair,” courts weigh the purpose of the use, the nature of the work, the amount of content used and the posting’s effect on the original piece’s market value. Many of the bloggers Righthaven had sued had not reposted much material and had such small readership that the financial effect would have been minimal.
To Bruce Johnson, a media lawyer at Davis Wright Tremaine, Righthaven’s approach also was problematic because the company sued bloggers instead of simply asking them to take down materials — and, in doing so, deviated from common practice in the newspaper industry.
“They were trying to get money through litigation as opposed to trying to enforce a copyright ownership,” Johnson said.
Ironically, many of the sites that Righthaven sued were so small that it would have been difficult to show that the media companies suffered enough harm to get large financial compensation, Johnson said. And if courts did award Righthaven large damages, many defendants might not have the money to pay the judgments.
Righthaven CEO Steve Gibson said in an interview that the purpose of his company’s model is to address “within the confines of existing law” the belief that copyright owners need greater protection for their work.
But many legal experts said they opt for less aggressive approaches to perceived copyright infringements.
These approaches can include doing nothing if the perceived third-party use is relatively minor or if the website may have a strong fair-use defense; politely asking a blogger to remove the content; sending a formal cease-and-desist letter that cites the DMCA; and, typically as a last measure, suing.
Though The New York Times does not permit others to take its material unless they buy a license, the company tries to take a “soft approach” to perceived copyright infringement whenever possible, said Richard Samson, senior counsel at the Times. For instance, when a restaurant posts a New York Times review on its website, the paper will inform the business that it cannot copy and paste the article onto its site for free but it can buy a license, Samson said.
“In probably 99 percent of the cases, that soft approach is successful and the third party takes the material down or licenses it,” Samson said.
The Times favors this gentler approach because it sometimes uses third-party material, such as in round-ups of news articles from other organizations, Samson said.
If someone uses Times material in bad faith, the company sends a formal DMCA takedown notice — and typically has had success when doing so. Lawsuits, Samson said, are a last resort.
Jeff Hermes, director of the Citizen Media Law Project at Harvard University’s Berkman Center for Internet & Society, said a softer approach is best when possible because bloggers may not realize that they are doing anything wrong when they post a newspaper story.
A formal cease-and-desist letter may intimidate bloggers because they will feel that it is a “prelude to a lawsuit,” Hermes said. Instead, if the news organization contacts an online journalist directly and less formally, “the blogger may feel flattered that the company was aware of the content or may feel like there’s a more human relationship,” he said.
But Holland & Knight media lawyer Chuck Tobin said it is “colossally easy” for bloggers to register for the DMCA and there is ample information available about how to do so. The first approach to perceived infringement for many newspapers is to send a formal takedown notice that cites the DMCA, Tobin said.
“The news media is not trying to buy into a whole bunch of litigation,” Tobin said. “They want the problem solved quickly, and the DMCA provides fantastic incentive to potential defendants to take down the material.”
The DMCA takedown procedure, Tobin said, has solved a “large portion of the concerns” for mainstream newspapers.
But, to Hinueber at Stephens, the DMCA has holes because there is a delay between when a website posts an article and when it takes it down.
“When you have people who routinely use your copy, sending a takedown notice is kind of like closing the door after the horse has left, as news has a time-sensitive value,” Hinueber said.
The fall of Righthaven
This concern for newspapers’ business models led former Review-Journal publisher Sherman Frederick in a May 2010 blog post to say that Stephens’ partnership with Righthaven was undertaken for the “protection” of journalism. At the time, he urged other newspapers to follow suit.
Though Frederick did not get the response he wanted from the news industry, media lawyers say that there are times that lawsuits against potential infringement can be effective.
Tobin said litigation makes the most sense against “an egregiously repetitive offender who has failed to listen to reason and is pirating a significant enough amount of material that they just need to be stopped.”
Aggregators, or sites that post links to or blurbs about news articles, are another problem area where media lawyers say there is little consensus on how to respond.
While some editors think aggregators drive traffic to their websites, others think such a site has “essentially stolen the heart of your article,” Johnson said.
Barclays Capital Inc. v. Theflyonthewall.com, Inc., which the U.S. Court of Appeals in New York City (2nd Cir.) decided in June 2011, left open the door for news organizations to try to use the “hot news” doctrine to challenge aggregation sites. There, Theflyonthewall.com, a website that summarizes financial reports, withstood a hot news misappropriation challenge, but the decision suggests that the doctrine — which lets the organization that breaks news have a monopoly on it for a short period — could be used against aggregators in other instances.
Righthaven, meanwhile, has stopped filing new lawsuits, though Gibson said in January that he continues to appeal court decisions. He maintains that Righthaven does have the standing to sue, and that bloggers who repost a full article cannot win on a fair-use defense.
Stephens is still Righthaven’s client, but it “has not assigned any copyrights to Righthaven for many months,” Hinueber said. Meanwhile, MediaNews dropped the firm in September, with the news organization’s new CEO John Paton telling Wired magazine that the deal was a “dumb idea.”
To Johnson, Righthaven’s aggressively litigious model was problematic because it alienated readers.
“Oftentimes, trying to enforce a copyright when people say good things about you is kind of silly,” Johnson said. Stronger action is more suitable when a site is trying to commercially exploit a newspaper, he said.
“When you start suing your readers, you may be creating a profound public relations fiasco,” Johnson said.