Righthaven Uses Copyright for Parasitic Bottom Feeding

A company called Righthaven has a new approach to copyright infringement. Rather than protect its own content, the company seems to watch for individuals and small companies and non-profits that post some newspaper story on their sites, and then licenses the rights and sues.

The lawyer who started the company is the publisher of the Las Vegas Review Journal, which is owned by Stephens Media. The modus operandi is to immediately file suit, without even a letter, let alone a formal take-down notice, and to threaten not only financial suits, but ask courts to transfer the domains of the offenders to Righthaven. Oh, one other thing -- the defendants are often sources mentioned in the stories. Read the Ars Technical story at the link above for a general overview. What I noticed, though, is that at least in some cases, Righthaven gets its way through bluffing people who don't know better.

Look at the suit filed against the National Organization for the Reform of Marijuana Laws (NORML). Righthaven filed the complaint on March 15, 2010. The company alleged that NORML reproduced an article called Marijuana as Medicine. According to copyright registration TX0007095275, the article first appeared on August 30, 2009. The copyright registration date is March 5, 2010. According to the complaint, the infringement took place "no later than February 18, 2010." The complaint is below:

The series of dates are significant. Under U.S. law, a copyright owner cannot bring legal action until registering copyright. The statutes set out clearly what potential remedies a copyright owner has in a case of infringement. They include injunctions against further infringement, impounding infringing copies, and monetary damages. There is nothing at all about transferring ownership of an Internet domain from the infringer to the owner.

Monetary damages are explicit under the law. The owner can get actual damages suffered as well as any profits the infringer might have gained. If the owner has either registered copyright of the material with the Copyright Office either before the infringement or within three months of the first publication of the material, then statutory damages that start at $750 per infringement (a Web posting would be one infringement) and can go up to $30,000 "as the court considers just" are a possibility. From what I've seen over the years, courts tend to the lower ends of the range.

In a case like that of NORML, where there is no revenue, all the copyright owner can argue for is actual damages. What would that be? In the offer of judgment document, there were 247 people who possibly looked at the article on the NORML site. Righthaven talked NORML into paying $2.95 for each to cover the cost of purchasing a copy of the article from the newspaper's archives, or a total of $2185.95 after some costs.

Righthaven apparently didn't mention that the article is still available on the Las Vegas Review-Journal site. Archive charge? Try actual damages of the advertising revenue associated with a potential 247 lost page views. Optimistically, that would be about the amount a person would need for a decent restaurant meal.

Perhaps NORML didn't think of checking the availability so it could rightly tell the company to pound sand. Or maybe it figured that by the time it paid a lawyer to continue the back and forth, it would end up spending more.

And there's the real nub. Look at the money Righthaven gets in its cases: $2,200 here, $5,000 there. In total it's significant, but each individual action is small, and just at the level where a defendant might well decide that it would cost less to settle than to pay a lawyer. Given that a civil suit filing fee in the Nevada district is $350 and little actual legal work is necessary, the return on the investment is significant.

Righthaven has even taken up suing online forums and discussion sites for what site users post. The site owners would generally have protection under the Digital Millennium Copyright Act (DMCA). Instead, copyright owners can demand that the site owner remove material. But Righthaven doesn't bother with that process. Why, when that doesn't potentially scare up dollars to make a legal action go away relatively cheaply? And if the company really wanted to pursue the copyright infringers, it would subpoena their names. But that's a lengthy and expensive proposition that would suddenly make the economics unfavorable for the company.

For example, Righthaven is suing Silver Matrix, which publishes DSLReports.com. Why? Because a site user posted a Las Vegas Review-Journal in a discussion forum, and Righthaven wants to sue Silver Matrix because, presumably, it as a business has money to pay. Silver Matrix has a strong argument that Righthaven is suing the wrong people and not making proper use of available legal channels to address a problem, although its answer to the Righthaven complaint doesn't explicitly mention the DMCA. But it does provide an interesting and insightful summation of Righthaven:

Plaintiff's business model appears to consist of filing high volumes of small claims copyright actions against numerous out-of-state defendants who must retain counsel to defend them at costs that far exceed the value of the claims at issue. Plaintiff does not appear to seek or even ask for the take-down of their works but sue without advance notice in order to impose high transaction costs on anyone who would seek to defend themselves. Whether or not there is jurisdiction and whether or not there is merit to the claim or likely defenses, Plaintiff seems to rely on the cost of defense to extract settlements that exceed the fair or reasonable value of the claim. The practice is abusive and the Nevada District Court should not take jurisdiction of such massive and parasitical abuse of its judicial resources.

I have enormous sympathy for copyright owners. But the unreasonable use of legal remedies as a way to generate revenue when a copyright owner has lost virtually nothing is odious. It demeans the entire process and undercuts public support for reasonable intellectual property protection.

There was a time when a newspaper might happily accept the label of muckraker. Someone has to find what the public needs to know and bring it to light. Unfortunately, as newspaper publishers consider working with a company like Righthaven, the term has changed. It now means stirring mud for better bottom feeding. Parasitic, indeed.

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