Is Righthaven Harming the News Industry?

Righthaven, a copyright-enforcement entity that sues first and asks questions later, comes up a lot here at the CMLP, both on the blog and in the legal threats database.  As a recent profile on CNN.com illustrates, Righthaven’s founder Steve Gibson thinks he is simply enforcing content owners’ rights within the digital landscape:

What really is happening here is a realization of the infringement community that the days of merely receiving a takedown letter are over, and that people will have a means to protect their ownership rights. Like you're taught in grammar school, it's not right to take someone else's work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't make it right.

In particular, Gibson thinks that fair use doesn’t cover “the kinds of reproduction that Righthaven is addressing”:

One hundred percent takings are seldom fair use, whether by a for-profit or a non-profit institute. The notion of fair use has been very stretched by advocates of reproductions.

Fortunately for bloggers, courts seem to be taking an increasingly critical look at Gibson’s views.  Back in October, the federal court in Nevada threw out a case against a blogger who copied “only the first eight sentences of a thirty sentence news article” on fair use grounds.  Just a few days ago on March 18, 2011, a different Nevada judge threw out yet another Righthaven case on fair use grounds.  As Steve Green of the Las Vegas Sun reports, however, Righthaven LLC v. Center for Intercultural Organizing involved the re-posting of an entire news article:

[U.S. District Judge James] Mahan, who last year raised the fair use issue in the CIO case without being prodded to do so by CIO attorneys, said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, the CIO didn't try to use the story to raise money and because the story in question was primarily factual as opposed to being creative.

The judge also found there was no harm to the market for the story.

Of course, neither of these recent cases are binding legal precedent, and they may be overturned on appeal.  The CMLP has written legal guides about using the works of others and fair use, which can be helpful in working through these issues.

The tide may be turning against Righthaven.  Indeed, as Green points out, it seems ironic that Righthaven may be undermining all newspapers’ case for copyright protection:

One year ago, U.S. newspapers and broadcasters could feel confident they controlled the news content they created….Then along came Righthaven LLC of Las Vegas, the self-appointed protector of the newspaper industry from such news sharers.

Some 250 Righthaven lawsuits later, Righthaven’s startling achievement is that newspapers now have less — not more — protection from copyright infringers.

Green’s analysis that Righthaven seems to have shot itself in the foot appears to be driving subsequent coverage, including analysis on websites from paidContent to Ars Technica.  As the CMLP’s own David Ardia recently commented over at Media Post:

Righthaven is not necessarily acting in the best interests of news organizations. The results of some of these cases -- which strike many as overbearing and ill-advised -- are potentially creating law that will, in the long run, be detrimental to the interests of news organizations.

Copyright law is often ambiguous, and the precise line between infringement and fair use is unclear.  Whatever else can be said about the merits of a typical Righthaven lawsuit, the sheer number of cases is forcing courts to take a hard look at the policies underlying copyright law and to provide some much-needed clarity.  Insofar as Righthaven’s tactics are often, in practice, little better than bullying, it is little wonder that judges seem to be doing everything they can to give Righthaven’s defendants the benefit of the doubt — even if this ends up constricting the rights of established media players.

In short, Righthaven’s own actions may be undermining the legal foundations for copyright’s protection of news stories.  If I were a traditional news publisher with an expansive view of copyright law, I’d be furious at Righthaven.

Joel is a Massachusetts attorney and recent graduate of the Boston University School of Law.  He also writes for his own commentary blog, Legally Sociable.

(A shorter version of this post previously appeared on Legally Sociable.)

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