Righthaven Continues To Stretch The Meaning Of Copyright Law In Filing Lawsuits
from the more-lawsuits-every-week dept
Righthaven, the company “grubstaked” by the Las Vegas Review Journal, which is basically going around suing any and every site that posts any of its content, continues to up the ante in abusing copyright law. Every week, it’s filing more lawsuits. We’ve actually been hearing from some of the sites that have been sued, and many are lawyering up to fight Righthaven, because the claims are getting increasingly ridiculous. Righthaven appears to not take into account any of the context of the pages on the sites it’s suing. For example, many of the sites it’s suing involve users — not the site owners — posting content in forums. In those cases, the site owners are almost certainly protected by the DMCA safe harbors (assuming they’ve set themselves up with the Copyright Office for DMCA safe harbor protections). That doesn’t seem to be stopping Righthaven, though, which is making some fascinating (and blatantly wrong) legal claims.
For example, one of its recent lawsuits is against the political forum Democratic Underground, where a user (not the site owner), quoted a mere 4 paragraphs of a 34 paragraph story — and included a link to the full story. No matter, Righthaven sued. As it does in all of these lawsuits, it’s demanding $75,000. The number is carefully chosen, because it’s less than what going to court will likely cost. The idea is to just get people to pay up, even if the legal claims are bogus. Beyond the $75,000, it’s laughably demanding that the domain name of the site be turned over as well.
Righthaven tries to avoid the obvious DMCA safe harbor issue with the following:
“The defendants’ failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the website constituted and constitutes the defendants’ willful blindness to copyright infringements occurring on the website …”
Nice theory. Too bad that nowhere in copyright law does it require service providers to have such proactive policies, and in the various lawsuits where this has been challenged (I’m looking at you, Viacom/YouTube, and you, Veoh/Universal Music) courts have pretty much laughed out loud at the suggestion that sites have any legal requirement to proactively police user generated content.
Given the fact that Righthaven seems to be suing more sites every week (it’s about to crack 100, if it hasn’t already), it seems like the plan is to basically just sue everyone that a Google search turns up, no matter how dubious the legal merits might be — and hope that enough sites settle before this operation is put out of its misery. Nearly everything about this setup is questionable. The fact that it doesn’t issue DMCA takedowns or alert sites before suing, while legal, can’t look good in court. It suggests, quite clearly, that the copyright holder did not make use of clear tools at its disposal to “minimize” any harm. Courts generally don’t like that. On top of that, suing site owners for actions of forum users won’t look good either. Nor is claiming infringement on just a small snippet of a much longer article that includes clear attribution and a link back. It’s difficult to see how anyone at Righthaven can legitimately claim “harm” here.
The only “good” that may come of this is that Righthaven is really doing an excellent job demonstrating what a laughingstock copyright has become.
In the meantime, if you’d like to hear Righthaven’s CEO challenged on some of his assertions, be sure to tune into an audio “IP roundtable” from the law firm Bryan Cave on September 8th. Steve Gibson will be on the panel, as will Eric Goldman — who I fully expect to challenge Gibson on many of his claims. The panel will also include Barbara Wall from Gannett who hopefully will explain why Gannett has chosen not to follow the LVRJ in suing people for advertising their content.