Righthaven Perfects Online Copyright Trolling -- Almost

Last Updated Dec 24, 2010 7:42 AM EST

Righthaven, a controversial company whose business involves suing Web sites for alleged copyright infringement of its client newspapers' articles and photos, has tried to expand its game. Earlier this month, the company set its target sites on The Drudge Report for its use of an image. Not only is Righthaven asking for money, but for control of Drudge's domain. And the company has added MediaNews Group, publisher of the Denver Post, to its client roster.

Lawsuit filing machine

Righthaven has filed hundreds of lawsuits this year and, up until recently, it has focused on individuals and small businesses and organizations that would likely find it less expensive to pay a settlement than to mount a legal defense, especially as the Nevada venue is a distance for most of them. But if you ask copyright attorneys and litigators, what they company does is not actually new, nor is it necessarily all allowed by law.

"You've got a copyright troll hired as a hired gun," says Alan Behr, a partner with Alston & Bird and the head of the firms electronic entertainment group and fashion and luxury goods practice. "You're seeing someone getting creative with the law. It's hard to blame them -- that's what we're getting paid for."

Righthaven did not invent the essential business model it employs. "These groups have existed long before," Behr says. "Corporate libraries would subscribe to one copy of a technical journal and then print many copies and give it to their engineers. This isn't new. It's [just] high tech."

Bloggers take unnecessary chances

Behr thinks that any problem is more with people who use the Internet and don't learn about copyright laws, including the Digital Millennium Copyright Act (DMCA):
It's like talking to the people in Mississippi who screamed about not having flood insurance. Did they read their policies? Do I think it's necessarily a good thing as a matter of policy? No. I think that the effective thing is to stop the action. But I'm not the people managing the problem. I don't know if it will help the papers or if it's just a monetary grab.
In Behr's view, the law exists to protect writers, photographers, and artists. But what irks many about Righthaven's tactics is that it doesn't send an initial warning letter to the alleged infringer or a DMCA takedown notice requesting the hosting ISP to remove infringing material. Instead, the first action generally is a lawsuit seeking stiff damages:
Also common to most--if not all--Righthaven suits is a demand for a $75,000 to $150,000 award and forfeiture of the offending Web domain by the defendant.
"Simply reposting a news story on your blog that might have a distribution of 25 people seems to be a waste of resources of the courts and not the true purpose of the Copyright Act," John Strand, a senior associate and litigator with Wolf Greenfield, told me.

A fair use self defense?

In addition, judges have begun to question whether some alleged infringers are actually exercising rights under fair use, a U.S. copyright doctrine that limits the absolute protection of copyright when people use material for specific purposes, "such as criticism, comment, news reporting, teaching, scholarship, and research."

U.S. copyright law also specifies the help that copyright holders can seek. Righthaven doesn't always appear to hold to statutory remedies. "Their most egregious requests are asking for the domain names," Strand says. Not only do copyright statutes not address the issue of seizing a domain, but if such a request were granted by a court, it could present some thorny problems:

[One defendant's] domain is through WordPress: lowcountry912.wordpress.com. But that's a subdomain. He's not even the owner of the domain name, so there's no way a court could assign that over because they'd need to have WordPress as the infringing party.
Newspapers are desperate these days, and so it might not be surprising that some chains will cooperate with Righthaven to get some additional money for assigning their rights to the company, giving it legal standing to sue alleged infringers. But the number of legal counter-challenges are increasing, and eventually the question will be whether Righthaven can remain a viable business.

One wonders about the business model," says William Frankel, chair of the copyright practice for Brinks Hofer Gilson & Lione. "I supposed if you have a high enough volume and you can extract $5,000 settlement or whatever out of a number of defendants, it could be a productive business model."

However, should counter claims increase and the cost of defending as well as litigating gets too dear, Righthaven may find that its biggest lever -- it has kept costs low enough that it can ask for amounts less than it would take to hire a defense lawyer â€" disappears.


Image, courtesy stock.xchng user anna-OM-line.
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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.