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

Copyright

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.

Filed Under: copyright, fair use, journalism, sherman frederick
Companies: las vegas journal-review, righthaven