Newspaper Publisher Defends Filing 22 Copyright Lawsuits Against Sites Who Copied Text... With Links Back

from the you're-going-with-the-steal-a-car-analogy? dept

Back in April, we got a tip from someone that a lawyer who had worked for the Las Vegas Journal Review newspaper had set up shop as a company, called Righthaven, to sue websites that post copies of LVJR stories. We looked into the story, and tried to trace the path from LVJR to Righthaven -- even speaking with someone at Righthaven who didn't give particularly enlightening answers. In the end, we chose not to run a story, because there wasn't much detail to go on. However, as more information has come out, the story gets more and more ridiculous.

First, most (if not all) of the websites being sued all published links back to the original LVJR stories. Second, almost all of the sites were not, in any way, competitors of the LVJR. Instead, they were different organizations or groups that followed certain issues, and in the process reposted a variety of stories on those issues, including links back to the LVJR. While this might be copyright infringement, it can be a borderline case, and it's hard to argue that it does any harm to the LVJR. If anything, it's promoting their coverage. However, the really bizarre part of all of this was that Righthaven sued all these sites without first issuing a DMCA takedown or giving any notification at all to the sites. It just sued. Now, there certainly is no legal requirement to issue a DMCA takedown or to notify people first, but it is odd and unexpected -- especially in scenarios where I'd bet many of the sites in question would have just taken down the content.

Now, Eric Goldman alerts us to the news that the LVJR's publisher, Sherman Frederick, is defending these lawsuits with one of the more economically and legally clueless arguments we've heard in a long time. He even pulls out the ridiculous "you wouldn't steal a car, so why are you stealing my content" analogies:
Say I owned a beautiful 1967 Corvette and kept it parked in my front yard.

And you, being a Corvette enthusiast, saw my Vette from the street. You stopped and stood on the sidewalk admiring it. You liked it so much you called friends and gave them my address in case they also wanted to drive over for a gander.

There'd be nothing wrong with that. I like my '67 Vette and I keep in the front yard because I like people to see it.

But then, you entered my front yard, climbed into the front seat and drove it away.

I'm absolutely, 100% not OK with that. In fact, I'm calling the police and reporting that you stole my car....

Yet, when it comes to copyrighted material -- news that my company spends money to gather and constitutes the essence of what we are as a business -- some people think they can not only look at it, but also steal it. And they do. They essentially step into the front yard and drive that content away.
Except, of course, any fifth grader could point out the obvious difference. Making a copy of your news (and linking back to it) is not "driving off with it." No one has "driven away" the content. The content on the LVRJ website is still there. Not stolen at all. Might there be "infringement"? It's possible. But, there are other issues to take into consideration -- such as the actual impact on the LVRJ. It's hard to make any reasonable claim that any of these sites did any damage whatsoever to the LVRJ. In fact, you could argue that all of them helped promote the LVRJ as a publication to follow on these issues.

Reading between the lines, I'm kind of wondering if Frederik is really trying to set up an operation that is more like US Copyright Group or ACS:Law, seeking to file a bunch of borderline questionable lawsuits just to get money out of people. He admits in the article that his paper has "grubstaked" (grubstaked?!?) Righthaven and encourages other publishers to contract with Righthaven as well. He doesn't mention that the company CEO apparently was (or still is?) a lawyer who did work for LVRJ, though he does suggest that if you want to work with Righthaven, you contact LVRJ's general counsel.

Wendy Davis, over at Mediapost, has an excellent article ripping apart Frederik's bizarre editorial, pointing out how the "car" analogy makes no sense at all. Davis, in an earlier article, also pointed out that it seemed unlikely that the amount Righthaven could get from any potential court victory could possibly outweigh the legal costs. The whole thing really is bizarre.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    m3mnoch (profile), Jun 4th, 2010 @ 11:21am

    yes, but will charles krauthammer sue him?

    because, you know, he just drove off with krauthammer's 'vette right out of his front yard -- without so much as a link back.

    frederick
    http://www.lvrj.com/blogs/sherm/Those_troublesome_Jews.html

    krauthammer
    http ://www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060304287.html

    (warning: the post article is registration required)

    of course, you can't really deep-link to the washington post story anyway because it's behind a paywall. and you can't really find the original quote because that means it's not in google's search engine. but, i guess all that's a different post altogether.

    m3mnoch.

     

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  2.  
    identicon
    Anonymous Coward, Jun 4th, 2010 @ 11:33am

    "Davis, in an earlier article, also pointed out that it seemed unlikely that the amount Righthaven could get from any potential court victory could possibly outweigh the legal costs."

    Much of the legal costs are what goes to lawyers, isn't that kinda the point? To make money for lawyers?

     

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  3.  
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    Dark Helmet (profile), Jun 4th, 2010 @ 11:35am

    Re: yes, but will charles krauthammer sue him?

    Wow, Frederick pointing to a spokeperson for the Council on Foreign Relations as his source of what a great idea the Israeli blockade is....

     

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  4.  
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    :Lobo Santo (profile), Jun 4th, 2010 @ 11:39am

    Re:

    Yes, making money for the lawyers is the point of all modern society. In fact, we have organizations in place to force those "third world" countries to modernize so that they too can make money for our lawyers.

     

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  5.  
    identicon
    Anonymous Coward, Jun 4th, 2010 @ 11:44am

    A better analogy would be that I liked the vette so much, I took a picture on my cell phone, and forwarded it to all my friends, with his address listed so they could come and see the original for themselves first-hand.

    Of course... since I took the picture, I then own the copyright to said picture, and could sue my friends if they choose to forward it to their friends without my written consent. Man... this copyright stuff is confusing. :p

     

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  6.  
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    Mike Masnick (profile), Jun 4th, 2010 @ 11:51am

    Re: yes, but will charles krauthammer sue him?

    because, you know, he just drove off with krauthammer's 'vette right out of his front yard -- without so much as a link back.

    Hmm... I as about to update the post to point this out, but I see at the end he says "You can read the full column in Sunday's Review-Journal." So it sounds like they licensed the column...

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Jun 4th, 2010 @ 11:52am

    If I could "steal" a car the same way I could "steal" a newspaper article from the internet then yes, yes I would steal a car.

    So would hundreds of millions of others, at first, and because there's more value in a car than a newspaper article, I'm sure a billion people would steal cars.

    But only if stealing were like copying, which it isn't.

     

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  8.  
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    Matt Jones (profile), Jun 4th, 2010 @ 11:58am

    Re:

    I decided to finally register an account just to make this exact point.

    The only thing I would change is that in the analogy, Goldman is trying to sell his 'vette, and you sharing the pictures and location info would actually help him do that.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jun 4th, 2010 @ 12:02pm

    or perhaps, going back to the vette.. you call your friends and send them a picture of the vette along with the address, so they can find it.

    So you have a little snippet, (the picture) and the address (link) and suddenly more people are checking out your vette

     

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  10.  
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    Wesha (profile), Jun 4th, 2010 @ 12:03pm

    Gosh... I went to LVRJ.com to write a snarky remark, but then... in order to register, you need to provide them...

    * Full name
    * Email
    * Street address (optional)
    * ZIP code
    * Birth date

    Thought police, anyone? Post something they don't like, and the partyvan is on the way...

    (note 1: Geneder (inferred from name) + ZIP + DOB = 87% identification rate)

    (note 2: Of course, everybody lies on the internet. Or should, at least.)

     

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  11.  
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    Derek (profile), Jun 4th, 2010 @ 12:06pm

    Grubstake

    It might have just been a Freudian slip, but Frederick said the paper had "grubstaked" the new trolling company. I had to look up grubstake but it means "To supply with funds in return for a promised share of profits." The most common use apparently is within the mining industry. So, my conclusion is that they are digging for gold...I'm just saying..

     

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  12.  
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    :Lobo Santo (profile), Jun 4th, 2010 @ 12:13pm

    How To...

    How To Make Money in the 21st Century (apparently):

    1) Make something popular enough that people will want to copy/link-to it.
    2) Use the Judicial branch as your personal enforcement squad and sue everybody.
    3) Profit?

     

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  13.  
    identicon
    Anonymous Coward, Jun 4th, 2010 @ 12:17pm

    Re:

    what if I took pictures of your pictures?

     

    reply to this | link to this | view in thread ]

  14.  
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    Hulser (profile), Jun 4th, 2010 @ 12:21pm

    Their prerogative

    Might there be "infringement"? It's possible.

    I don't know if this is legally infringement, but in my opinion, copying an entire article, even with proper attribution and/or a link back to the original, is wrong. No, I don't think it makes sense to lock your content behind a wall, but that is the prerogative of the content creator, even it you could somehow prove that there was actually a net benefit to the creator. It'd be like the government making IRA and 401k contributions mandatory. "It's good for you, right? So what's the problem?"

     

    reply to this | link to this | view in thread ]

  15.  
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    jjmsan (profile), Jun 4th, 2010 @ 12:35pm

    Re: Their prerogative

    You have heard of Social Security taxes, right?

     

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  16.  
    identicon
    JEDIDIAH, Jun 4th, 2010 @ 12:50pm

    Re: Re: yes, but will charles krauthammer sue him?

    Sensibility and legality are two totally orthogonal things. You can agree with one while disagreeing with the other.

    People often conflate and entangle the two.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Benjie, Jun 4th, 2010 @ 1:53pm

    So..

    If I went up to this person's lawn and made a copy of his car, leaving it intact, then drove off in the car I made.

    Then I put a sign on my car that says "This is where I got the idea for my car" telling the directions back to his place.

    I guess making copies of people's cars, while not touching their car, is some how illegal?

    Tangible = finite
    Intangible = infinite

    Ma'b we should require a PH.D in Math in order to make ANY laws about intangible things since smarty pants math people are the only ones to comprehend the idea of "infinite" correctly.

     

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  18.  
    identicon
    Tek Support, Jun 4th, 2010 @ 2:02pm

    Re: How To...

    Actually, step one should be replaced with the following:

    1a) Go to Law School
    1b) Become the lawyer for the person that makes something popular enough that people will want to copy/link-to it... and so on

    ...
    3) Profit!

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    Pickle Monger (profile), Jun 4th, 2010 @ 2:20pm

    [...]"the "car" analogy makes no sense at all."



    Actually it makes perfect sense. Talking about it and linking to the article is the equivalent of
    "lik[ing] it so much you called friends and gave them [the] address in case they also wanted to drive over for a gander."

     

    reply to this | link to this | view in thread ]

  20.  
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    Lauriel (profile), Jun 4th, 2010 @ 8:23pm

    Re:

    I did the same, and gave up. 3 pages of information just to leave a comment seems excessive.

    One thought that occurred to me reading the comments others have left is this: It appears that there is a basic misunderstanding of the differences between publicising print and online material.

    Many of the arguments given are valid for print. However, online is a different kettle of fish. Online publicity may be counterintuitive to those already established in print media. Reposting an article will gain you a wider online reputation, and backlinking may assist to rank you higher on the search engines. So, those that stated they thought they were complimenting the original site were correct.

    That said, it is more beneficial to the original website if they were to repost part of the original article with a backlink, as it drives more traffic to their site as people may follow the link to read the full article. However, surely getting in touch with the person/s reposting and politely explaining this would be much more beneficial to LVRJ in the long run.

    It seems to me that educating themselves in online promotion is called for, rather than lawyering up and making fools of themselves in defending their choice. I'm willing to concede that my own understanding of online publicising may not quite up to scratch, though. I may be missing something?

     

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  21.  
    identicon
    Anonymous Coward, Jun 5th, 2010 @ 6:50am

    Real Issue

    The real question: Did they sue local TV news when they carry their stories with attribution?

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    BearGriz72 (profile), Jun 5th, 2010 @ 7:08pm

    Rebuttal WIN!

    From the linked debunking:
    Marc Randazza, an attorney who is defending NORML in the lawsuit, shared some of his thoughts about the Corvette scenario with MediaPost. "The real analogy is this: You have a 1967 Corvette in your driveway, and you charge people $2.95 to take pictures of it. Someone drives by and doesn't know that you charge to take pictures of it. They take a picture, and you come running out of your house with baseball bat and demand $5,000 or you'll smash in the windows on their car."
    I will also vote for Benjie above...

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Pirate of the Scarabbean, Jun 14th, 2010 @ 8:23pm

    It's a consPiracy!

    What does a failing newspaper do that's facing bankruptcy because nobody reads its propaganda? Just make a quick buck (for the lawyers) and sue everybody in frivolous lawsuits, for being nice enough to link to their pathetic excuse for a website. Bite the arm off the ones who feed you links, without bothering for reciprocal links that raise search engine rankings. Guess they didn't teach webmastery in law skool.

    The way to handle presumably mobbed-up Las Vegas Review-Journal is to NEVER link to its site ever again, copy all facts out of a story, never name the source/author/title, then claim 100% of the facts for your site. Pit it's presumably mobbed-up lawfirm and its lawyers on your hit list, digging for dirt FOREVER. Case closed.

    FYI the kosher nostra founded and run Vegas, with a kosher nostra lawyer as the Vegas mayor. No wonder Vegas is a ghost town.
    en.wikipedia.org/wiki/Oscar_Goodman
    desertpeace.wordpress.com/2010/05/23/the-kosher-nostra-gets-busted-in-las-vegas/

    Learn how to litigate copyright cases without a lawyer, or send your family to law school. I did. I won in court.

     

    reply to this | link to this | view in thread ]


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