< Newspapers vs. The Internet


Friday, April 22, 2011

BOB GARFIELD: Over the past few years, we've spent a lot of time examining present and future business models to monetize the newspaper industry.

GROUP SINGS: Present and future business models to monetize the newspaper industry.

BOB GARFIELD: We've discussed display advertising, classified, online ads, paywalls, even donations. But here’s one we hadn't thought of, litigation. In the past year, a company called Righthaven has filed more than 250 lawsuits against blogs and websites that have reproduced some or all of a piece of newspaper content – article, photo, illustration, whatever – without permission. Here’s how it works: Newspaper publishers like Stephens Media, owner of The Las Vegas Review Journal or Media News, owner of The Denver Post, agree to work with Righthaven. They sell some copyrights on their articles to Righthaven, which then trawls the Web looking for people who have posted all or part of copyrighted content online. Righthaven then sues those people, usually for 150,000 dollars, plus it often demands the infringing party give the entire site over to Righthaven. No warning letter, no takedown request, just a lawsuit. Reporter Joe Mullin of Paidcontent.org has been closely following Righthaven. He says that many Tom, Dick and Harry defendants, lacking the resources to fight in court, quickly settle for thousands of dollars.

JOE MULLIN: So they've sued over 250 people. They sued The Drudge Report. That was a big name. But their more common lawsuit is really against a mom-and-pop blogger or a website? So during campaign season, for example, they sued political websites. They sued the website of Sharron Angle. They sued the Nevada Democratic Party. They have sued hobby bloggers. They sued a cat lady who was blogging about cats –

[BOB LAUGHS] - from the perspective of the cats.

BOB GARFIELD: [LAUGHS] They're not necessarily wishing to go to court and have jury trials over the rights to this material. They give bloggers, or whoever, an opportunity to settle from the get-go.

JOE MULLIN: Yes, they do give the opportunity to settle, and they've reached, I believe, over 100 settlements. We don't know much about those settlements because they are, like nearly all settlements in civil litigation, confidential. But there have been a few that were reported, and they were in the sort of 5,000-dollar and under range.

BOB GARFIELD: Righthaven is not a law firm that is representing its client, Stephens Media. It has actually acquired the intellectual property, all of the material that appears, for example, in The Las Vegas Review Journal, the, the articles, the photos and the illustrations. It says it’s the owner and, therefore, is suing not on Stephens’ behalf but on its own behalf, right?

JOE MULLIN: Yeah, so that’s a similar model to what’s been going on for just about a decade now, with what are sometimes derogatorily called patent trolls. And those are small companies set up on paper, often owned and operated by lawyers, who acquire patents solely for the purpose of threatening litigation and filing litigation. So what they do is take a piece of intellectual property and try to turn it into a pure moneymaker.

BOB GARFIELD: At least one small website felt that it was being shaken down and is fighting back. Tell me about the Democratic Underground.

JOE MULLIN: The Democratic Underground is a liberal political blog. And what’s going on now is they are pursuing a counterclaim for attorneys’ fees against Righthaven, and they insist that Stephens Media should be involved in that counterclaim, as well. They also on Friday finally were able to unseal the document that describes the deal between Righthaven and Stephens Media.

BOB GARFIELD: At that point, the world found out that the ownership of the content in question was itself in question. Tell me about that.

JOE MULLIN: So there’s a lot of important rights that come with copyright, such as the right to make new copies, the right to distribute, the right to make public performances. Righthaven had been saying it had a lot of those important rights, including the right to distribute. But now it turns out that the contract looks like Righthaven really had only the right to sue. Now that we know what the contract looks like, there are a lot of people asking whether the transfer of copyright that Righthaven did is even valid.

BOB GARFIELD: Now, there’s no law that says that lawyers can't be entrepreneurial. Tort lawyers have rounded up classes for class actions, you know, for a long, long time and made a lot of money for themselves and for their clients. Is there anything about the Righthaven case that suggests that they're in any way on the wrong side of the law?

JOE MULLIN: There’s nothing wrong with Righthaven going around, getting newspaper industry clients, selling themselves by saying, we can help deal with illegitimate copying online and we can help you get paid for that through the courts. It’s perfectly legal to do that. Now that we've seen the Righthaven contract, there are some lawyers who are looking for examples where Righthaven may have lied to the court, seeing if Righthaven said that it had certain parts of copyrights that it didn't actually have. That could get them in trouble. And now what I have a couple of sources saying is there are very likely to be defense lawyers, including possibly defense lawyers who worked with clients who already settled, wondering if they have some kind of counterclaim to be made.

BOB GARFIELD: Okay, Joe. Thank you very much.

JOE MULLIN: Thank you. It was a lot of fun.

BOB GARFIELD: Joe Mullin is a reporter for Paidcontent.org. Righthaven says it is merely protecting ownership rights from content thieves and acting properly under the law. Still, it has suffered some publicity hits from Mullin and others. When Righthaven sued a chronically ill, mildly autistic blogger named Brian Hill, it found itself at pains to withdraw the suit on what it called “humanitarian grounds.” Steve Gibson is the CEO of Righthaven. Steve, welcome to the show.

STEVE GIBSON: Thanks, Bob. It’s good to be here.

BOB GARFIELD: You've set up your business to sue many, many people. Very few of them have the wherewithal to take you on in court and, therefore, some have felt obliged to simply settle for no small sum of money. Some of them feel that they are being squeezed.

STEVE GIBSON: First of all, this business is addressing copyright infringement and theft. Your characterization that this business was established to go after the little guy in a mean-spirited manner is just plain wrong. Does Righthaven know when it sues a particular party what their net worth is? No. I think the question that is legitimate is to the extent that, you know, we take the profit motive out of it, does Righthaven serve a purpose of advancing the protection of copyright interests of content owners? I think it does. And is there a balance that’s being struck by the fair use discussion? Absolutely.

BOB GARFIELD: Let's talk about fair use. There was a case in which a nonprofit was sued by Righthaven over printing, in its entirety, content from The Las Vegas Review Journal. The judge found that because this nonprofit was neither in the market area of The Las Vegas Review Journal, nor in any way in competition with The Review Journal, that this was a fair use and could be done without penalty. I'm wondering if as a result of these lawsuits you could actually end up expanding the definition of fair use to actually permit exactly the kinds of infringement that you’re trying to litigate.

STEVE GIBSON: I don't think that Judge Mahan in that case, by any stretch of the imagination, indicated anything but a fair use analysis being a case-by-case examination. But to answer more directly your question, if we end up expanding the scope of fair use and defining with more clarity the parameters of what is permitted and is not permitted, we have no problem with that.

BOB GARFIELD: It was my understanding that Righthaven actually purchased the copyrights from its partners in this enterprise, Stephens Media, for example, owner of The Las Vegas Review Journal and that, therefore, you’re not suing to protect a client’s rights but, in fact, you’re suing to protect your own rights. But a document unsealed in one of the cases suggests that, no, you actually aren't the owners of the copyrights, only for the purpose of securing damages in court. Can you clarify that for me, please?

STEVE GIBSON: Sure. The first is I think that that agreement is being grossly misinterpreted by the press, and, and people running with things like “sham” and “fraud” frankly ought to be ashamed of themselves in that kind of inflammatory language. If you read the agreement and you read the assignment, the assignment is very clear, that Righthaven acquires the entire title and copyright interest in and to the copyright work. And the fact that in the course of acquiring that there is a license back for use purposes to the original aps nor [?] [0:23:58], there’s no law out there that suggests that that negates the original assignment.

BOB GARFIELD: In the linked Internet culture, clearly while there is a cost to having your content appear somewhere else, there’s also a benefit if it drives people back to your website. Is it possible that Stephens Media and others who have assigned copyright to you would have been better off by doing nothing?

STEVE GIBSON: An organization like Stephens Media, or even The New York Times, should have the ability to control the dissemination of its content and control the monetization of that content. If your content can be posted anywhere by anybody and searched, and the mom-and-pop.com site, if searched appropriately, is the first place that it’s read, that inevitably is going to negatively impact the economics associated with being the exclusive provider of that information.

BOB GARFIELD: Knowing what you know now, would you ever advise a media organization that approaches Righthaven to think very carefully before it starts filing lawsuits against all comers?

STEVE GIBSON: I feel more firmly today than ever that the protection of copyrighted works is important and that the means through which Righthaven is able to achieve that will be demonstrated as certainly beneficial to content providers. I just don't think that retrenchment right now into a policy of sending takedown letters is going to be successful. And as the economy continues to be an information-based economy and a digital-based economy, the value of people’s activities are going to be tied to content production, and that needs to be protected.

BOB GARFIELD: All right, Steve. Thank you very much.

STEVE GIBSON: Take care.

BOB GARFIELD: Steve Gibson is the CEO of Righthaven.