LVRJ Defends Righthaven Suits; Mocks Competitor For Highlighting Problems With Them

from the how-about-acting-smarter? dept

With the Las Vegas Review Journal continuing to massively abuse copyright law with its Righthaven lawsuits, the absolute best source for covering the story has been the competing Las Vegas Sun — leading some to claim that its coverage was to spite its local competitor. However, the Sun put together a good editorial explaining why the story is so newsworthy. Now, Sherman Frederick, the publisher of the LVRJ has hit back with an editorial slamming the Sun and insisting that the Righthaven strategy is the right one.

I’d link to the story, but since the LVRJ has made it clear it doesn’t like links, I figured it’s best not to do so.

Also, I would normally quote Frederick’s article to debunk it — a clear case of fair use — but since the LVRJ has made it clear it doesn’t want anyone quoting its articles (despite the fact it still has 19 separate “share” buttons on each article), I won’t bother. Instead, I’ll just make some general statements about Frederick’s column.

First, Frederick suggests that there are only two options for dealing with people copying your words online: you sue or you go out of business. He predicts that the competing paper, The Sun, is going to go out of business because it’s not suing others. I will note, of course, that he doesn’t point out the slight conflict of interest in the fact that he helped fund Righthaven, and thus has incentives to try to get other newspapers to make the same mistake he’s making. But, of course, there are plenty of other options, such as putting in place a smarter business model. The idea that the cat blogger in Boston is taking any revenue away from the LVRJ is beyond laughable. No one reads the story on the cat blog post and says “gee, now I don’t have to go to the LVRJ ever again.”

Frederick also claims that getting others to link to you and to promote your site doesn’t help you at all (which is partly why we’re not). However, this suggests he’s unfamiliar with the concept of “Google,” and the fact that it ranks your site’s relevance, in part, to how many others link to you and who those others are. But, his bigger problem is that he thinks people are saying that if you let others link to you the money will just roll in. But no one’s saying that. They’re saying that links in combination with a smarter business model help raise your profile and create lots of opportunities to make more money. Unfortunately, it looks like Frederick is taking the lazy short cut, which is pissing off all sorts of people, and serious hurting his brand.

While he claims that since the lawsuits began they haven’t seen any loss of traffic to their website, that’s a meaningless stat at this point. First off, it’s still quite early. Second, the idea isn’t just that the lawsuits directly would lead to a loss of traffic, but the inevitable chain of events following such lawsuits. It’s as if Frederick can only think a single step ahead. He must be a hell of a chess player.

From there, he claims that even if he was losing revenue from these lawsuits it would be worth it, because protecting the writing is more important than revenue. Really. That’s a paraphrase rather than an exact quote, because I don’t want Righthaven to sue me, but it’s basically what he says. The reason for that? He insists that it’s the writing in the newspaper that is the key value. That’s only partially true of course and sort of besides the point. These sites that he’s suing are not competing with the LVRJ, so pretending that a random site posting a single story somewhere (with credit and a link back) is somehow damaging the LVRJ is simply wrong.

But, more importantly, he’s overvaluing the content and undervaluing the community. He’s never been in the business of selling content. He’s always been in the business of selling the attention of his readers to advertisers. Forgetting that would be a big mistake. He claims that it’s the quality and (artificial) scarcity of the content that drives readership, and that’s partially true, but it only goes part of the way to explaining the business. It suggests that he’s done little, if anything, to make that content more valuable and useful for that community. In fact, he’s doing the opposite, by suing those who try to do something with the content. In the long run, that seems quite likely to backfire.

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Companies: las vegas review-journal, righthaven, stephens media

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Comments on “LVRJ Defends Righthaven Suits; Mocks Competitor For Highlighting Problems With Them”

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MrWilson says:

“I’d link to the story, but since the LVRJ has made it clear it doesn’t like links, I figured it’s best not to do so. “

I’d link to it here, but Section 230 doesn’t stop Righthaven from filing an expensive lawsuit anyway.

The ability to sue anyone for anything makes the country into a giant legal pvp server. Anyone can attack anyone else, whether you’re a level 5 noob or a level 80 [insert geekiest species/occupation reference here].

The problem is, as long as you have money, you can hire a level 80 player (lawyers) to kick the ass of the noobs for you.

Anonymous Coward says:

Just block them and insert a reminder of why it is being blocked so you don’t ever forget.

The hosts file is a good place to put them.

# Suing happy sites do not ever unblock them.
# To block a site map that site to the loopback IP address of the machine (IPv4: or IPv6: ::1)

# Righthaven addresses to block

PrometheeFeu (profile) says:

I have been thinking for a while about starting a Righthaven competitor. We could use search engine-type techniques to find content that “infringes,” buy the copyright to the original article and then threaten to sue (without actually ever suing) then rake in the doe. Then, donate some of the money to politicians who are willing to scale back copyright law. It could also fund my other insane project: hire a bunch of patent lawyers to create overly broad patents that cover where we see entertainment-related technology going. Then, sue the hell out of the players on the music scene who try to enforce copyright law for patent infringement.

average_joe says:

I’d link to the story, but since the LVRJ has made it clear it doesn’t like links, I figured it’s best not to do so. *** Also, I would normally quote Frederick’s article to debunk it — a clear case of fair use — but since the LVRJ has made it clear it doesn’t want anyone quoting its articles (despite the fact it still has 19 separate “share” buttons on each article), I won’t bother.

And those 19 separate share buttons allow a person to share a link to the article, not the content of the article itself, right? You know darn well there’s a big difference between a link to the article and the text of the article.

Anything to make them look bad, though, right? Doesn’t matter if it means twisting things a bit, right?

Here are direct links to the articles in question:–_You_either_do_it_or_you_dont.html

You know you can post links. They encourage people to share links.

Anonymous Coward says:


I’m a Las Vegas resident and the RJ is my local paper. It’s a complete joke, thanks to Sherman Frederick’s incessant editorial meddling. He’s a proprietor of the Murdoch style, only more doctrinaire and not so smart. You can’t trust anything the RJ prints that allows any opportunity, however slight, for Frederick to slant it to reflect his own opinions. Why anyone would think they’re doing people a favor by linking to this cat litter, I can’t imagine. Just cut it off already.

Gregg L. DesElms (profile) says:

Hmmm. I think maybe I don't completely get it

Linking back to this article, I just posted the following on my Facebook wall…

Mike Masnick over at TECH DIRThas been making a lot of noise lately about the Las Vegas Review Journal’s (LVJR’s) use of a law firm (of seemingly its at least partial creation) called “Righthaven” to go after those who purloin its web site’s content.


I’m having increasing difficulty seeing Mike’s point, though. He decries in this article LVJR’s interest in getting advertising content in front of its readers, which is ultimately a huge reason why LVJR doesn’t want others reprinting its peices in whole or in part… even with linkbacks.

Granted, many of Mike’s arguments against the current state of the US copyright system are spot on. And LVJR’s and Righthaven’s overboard guerrilla tactics are probably far beyond what the framers of copyright law ever envisioned.

But beyond just and legitimate “fair use,” over which LVJR correctly has no control, I’m having trouble seeing what’s wrong with LVJR’s vigorous attempts to control its property as a means of ensuring more ad views.

abc gum says:

Re: Hmmm. I think maybe I don't completely get it

“I’m having trouble seeing what’s wrong with LVJR’s vigorous attempts to control its property as a means of ensuring more ad views.”

Maybe you will see what’s wrong with it after you start getting two or three pre-settlement letters in the mail every week. It’s not a matter of if, it is a matter of when.

Gregg L. DesElms (profile) says:

Re: Re: Hmmm. I think maybe I don't completely get it

@abc gum wrote: “Maybe you will see what’s wrong with it after you start getting two or three pre-settlement letters in the mail every week.”

Gregg DesElms’s response: Please don’t misunderstand me. I agree that the tactics of LVRJ, et al, would at least appear to be over the top…. probably, in fact, are. Who knows.

But we seem to have two different issues, here. One is how abominably LVRJ, et al, would seem to be behaving; and the other is LVRJ’s right to use copyright law to keep others from capturing its pageviews which contain its advertising from which it rightfully derives revenue.

I’m a socio-political progressive… a lifelong Democrat… a so-called “bleeding-heart liberal.” It sometimes surprises people, then, that I can be so pro-business under certain circumstances. And one of those circumstances is when it comes to something so basic to our capitalist system as a business’s right to exist and thrive by means of its receipt of a fair price in exchange for its provision of goods and/or services. My concern about the complaints against LVRJ, et al, is that at least SOME of them would seem to wish to deny LVRJ, et al, its most basic right to a fair price in exchange for its product… in this case, its copyrighted materials to which US copyright law — flawed though it may be for the time being — allows to be assigned a value.

For LVRJ, et al’s aforementioned abominable behavior, I personally believe that it should be sanctioned if, in fact, it turns out that it has done the bad things that are alleged around here. I can think of SEVERAL states where the Court would simply not tolerate such shenanigans.

But LVRJ has the absolute right to use copyright law to keep others from publishing substantially all of its content on their own web sites, thereby depriving LVRJ of the revenues which it would have derived from the page views resulting from said content being viewed on LVRJ’s own web site, alone. A link-back from the offending web site to the content on LVRJ’s web site is simply not adequate; and I’m astonished, frankly, to read here that anyone thinks it is.

Do I really need to make the any-dope-can-intuit point that few (if any) who read the content on the offending site will then click on its link back to the source LVRJ site (one source of revenues to LVRJ: the pageviews or impressions); and/or the other c’mon-who-can’t-figure-out point that even those who do click back are unlikely to spend enough time there to be sufficiently rapt by its ads to then click on any of them (the other source of revenue to LVRJ: the clicks-thru)?

Obviously, LVRJ can’t control what people publish of its content on their own sites pursuant to “fair use.” And if LVRJ, et al, is disingenuously pursuing people for that, then that’s over the top, too; and, if so, then there should, again, be sanctions… at least once the Court is able to see the abusive pattern.

I’m also not wild about the letters LVRJ, et al, sends out, knowing that most people will settle; and the settlement amount intentionally being just less than what it would cost the recipient to defend himself/herself, thereby making settlement all the more attractive. That’s a tactic not dissimilar to what domain name squatters use. They know the minimum which must be invested to win a WIPO hearing, and the cost to actually pursue it, and so they routinely ask for a little less than all that in exchange for the domain name right after getting the first threatening letter… and they usually get it.

Either thing is despicable. No argument here.

I also appreciate how despised LVRJ, et al, has become for suing first and asking questions later. That’s also just not the right approach. It’s expedient, though… and, like it or not, the law clearly allows it. But it’s still not right… not if being reasonable and humane is on anyone’s agenda.

But the reason Righthaven is doing it is clear. It’s intending to not merely trouble those whom LVRJ, et al, have caught purloining its content; rather, it’s bygod intending to be the freakin’ angel of freakin’ darkness to them…

…with the obvious intend of the word spreading across the Internet about it, and thereby intimidating others from even THINKING of doing it. It’s called making an example.

I’m afraid that if I were counsel for LVRJ, and it asked me if that was a strategy worth considering, I’d have to answer that it technically was, but that I wouldn’t recommend it on all manner of general, overall fairness and reasonableness grounds. But if my client directed me to do it, and so doing was lawful, then I’d have to either vigorously comply, or equally vigorously return my client’s retainer so he can give it to some other lawyer.

Even the criticism around here of Righthaven for purchasing the rights to something which had had its copyright violated by someone BEFORE said purchase; and then Righthaving going after said someone for its copyright violation AFTER said purchase, is simply flawed thinking.

If the Court deprived LVRJ and Righthaven of its ability to conduct such a transaction, then the said Court would be flying in the very face of both the letter and spirit of both copyright law, and the Uniform Commercial Code (UCC).

Part of the value to a buyer of LVRJ’s content is not just what could be earned through advertising from publishing it (or whatever other obvious uses the buyer can think-up for it), but also the value of what could be derived from judgements or settlements payable to the content’s new owner resulting from others having violated its copyright, even prior to its sale. The potential “asset” which is what could be derived from copyright violation judgements transfers from the seller to the buyer along with the content itself.

C’mon, folks: A community college sophomore taking a 200-level business law course learns that.

Let’s say, hypothetically, that Able wishes to purchase a retail business from Baker; and let’s say that Able and Baker agree that a fair price for said business is three times its annual revenues.

Let’s say, though, that Chase had recently accidentally driven his car through Baker’s front window and had caused $100,000 in real damage, plus the loss to Baker of some not precisely known, but nevertheless estimable amount in revenues lost during repairs (plus whatever else for things like duress, inconvenience, attorney fees, court costs, etc.).

In such case, would not the true value of Baker’s business for purposes of selling it to Able be not only thrice its annual revenues, as Able and Baker had already agreed; but also the $100K in actual damages plus whatever else the Court decides (or is settled upon) between Baker and Chase?

For a judge to deny Righthaven the ability to purchase the rights to LVRJ’s content even AFTER its copyright had been violated, and then to sue pursuant to said violation and derive value therefrom once Righthave owns said rights, would be the same as a judge ordering in our hypothetical that Baker could not consider the amount that Chase will ultimately be paying to Baker’s business as part of the net value of said business for purposes of selling it to Able.

The UCC is clear: Unless otherwise agreed to, when one buys a thing, one buys, along with it, its both assets and liabilities. If said thing is a business, then a pending judgement in said business’s favor is as much an asset as its payables are liabilities; and so the potential value of said judgement factors-in to said business’s net value… and, more importantly, may be transferred as part of a sale of said business.

That’s why the UCC prohibits one from selling either a business, or substantially all of its assets, without first notifying one’s creditors of one’s intent to so do, so that said creditors may protest if they believe that either the assets, or the buyer, would not satisfy the debt owed to the creditor which either the buyer would then owe if its the entire business and all its both assets and liabilities are being transferred to said buyer, or which the seller would then owe if it’s only substantially all the assets (but not any of the liabilities) being transferred to said buyer.

When LVRJ sells the rights to its content, the same rules apply. Unless otherwise agreed to by the parties, the value of the content includes any potential (or actual) judgements in its favor which exist at the time of its sale, as well as any potential (or actual) judgements against it at that time.

If the content’s copyright had been violated prior to its sale, then the potential value of whatever judgement may be ultimately won as a result transfers with the sale of the content to its new owner… just like any other, in effect, receivable. Granted, said “receivable,” if it can even be called that at that point, is speculative, and so doesn’t really become a receivable, from an accounting standpoint, until there’s a judgement in the content’s favor. But, still, in terms of the seller’s and buyer’s agreement as to the value of the content, for sales purposes, the UCC says that the potential of the judgement amount resulting from the content’s copyright having been violated even BEFORE the sale has transferable value. Period.

Moreover, to complicate things, in most states, the buyer’s payment to the seller of the not-quite-yet-an-asset part or aspect of the transferred goods (the potential income from suing for copyright violations against the content, in this case) can be conditioned on the buyr’s ultimately actually receiving any income therefrom…

…and right there is where the APPEARANCE (and I stress that word) of LVRJ taking some kind of cut from Righthaven’s suit proceeds could happen. The parties can agree that the seller can transfer the content to the buyer, and accept only its value sans potential lawsuit income; and then, by agreement, the value of the lawsuit part of the sale price can be paid by the buyer to the seller if the buyer, in fact, ultimately succeeds at obtaining revenue from a lawsuit related to the content’s having had its copyright violated.

No on has the right, in any case, to stop the new owner of the content from then going out and trying to convert that potential judgement amount into some kind of actuality… otherwise, it was never potential value in the first place… and that would be contrary to the UCC’s both spirit AND letter. Forget copyright for a moment: What can be transferred as part of the sale of something, including revenue not yet earned (or liabilities not yet paid) is clear and unambiguous in the UCC.

Again, I realize that there are more issues than that; and that Righthaven has acted, apparently, disingenuously in several cases along the way; and that there are other troubling concerns. But those are separate issues from the parties’ rights under copyright law and the UCC.

Look, just because one (LVRJ, et al, in this case) can do a thing doesn’t mean that one should. Yet, that said, the fact that one could if one wanted to (and was willing to endure the criticism) means that one bygod ultimately can… no matter who hates it (or one) for so doing. In this case, LVRJ, et al, is willing to endure the criticism, and the law says it can behave as it has, and so it’s so doing. And there’s nothing anyone can do about it.

Perhaps what we should be talking about, here, then, is how the web site owners may comply with the law, and so will be less likely to run afoul of LVRJ, et al — or any OTHER copyright holder, for that matter — in the future.

Publishing substantially all of a copyrighted work is both wrong and actionable, under the law. Period. A mere link-back to the source of the copyrighted material won’t feed the bulldog…

…and, by the way, this web site’s turning around and then characterizing that as that LVRJ, et al, “doesn’t like link backs” is also disingenuous. LVRJ, et al, unless I’m mistaken in my having figured this all out, isn’t saying that it doesn’t like link-backs, categorically. Rather, it’s saying that link-backs are insufficient to cure the harm caused by someone publishing substantially all of its copyrighted content on any web site other than its own; and so, therefore, it doesn’t like link-backs not categorically but, rather, as a means of the offender trying to somehow make it it alright.

Framing it as though LVRJ, et al, doesn’t like link-backs, just categorically, bereft of context, is punching below the belt. It’s the rough analog of saying that Hitler didn’t like people who wore yellow six-pointed stars on their clothes. Everything — and I mean EVERYTHING — has context. The characterization of LVRJ, et al, simply not categorically liking link-backs was intentionally misleading. Shame.

The bottom line is that one may, on one’s web site (or blog or whatever) only publish what is “fair use” under copyright law… a snippet… a small amount to make a point or to refer, or to educate, etc. That’s it.

If a blogger publishes substantially all of the LVRJ’s content — even with a link-back — which is far in excess of what “fair use” would allow, then said blogger should not be surprised to ultimately learn that there are consequences to that kind of bad behavior.

That’s the point that LVRJ, et al, is trying to drive home, and it has simply chosen to do it like a bull in a china shop instead of deftly and fairly and what most people would consider more reasonably and humanely. LVRJ, et al, has decided to take no prisoners as a means of warning those who are considering violating its copyright to think twice.

Similarly, the Hun chopped off the heads of its conquered infantry and put them at the top of acres of pointed stakes at the outskirts of its conquered territories to dissuade those contemplating coming after them. LVRJ, et al’s is a Hun-like “fall on ’em like an old building” approach, clearly intended to slam-shut the sphincters of bloggers and web site owners everywhere.

And, oh, look: It would certainly appear to have intimidated @abc gum, for one.

I’m not saying that copyright law isn’t screwed-up. There are issues. But the law, UNTIL AND/OR UNLESS IT’S CHANGED, is the law. Web site owners, bloggers, etc., need to be mindful of that; and the need to FOLLOW the law.

Life, I tell you, is just so much easier when you simply follow the law. If the law’s wrong, then don’t break it, for godsake; rather, CHANGE it.

The way our system is structured, you can only just up and ignore/break a given law if it is facially (and that’s the operative word: prima facie) unconstitutional; and you also have the time, energy and money to fight in court your having run afoul of it until you get it in front the Supreme Court to have it DECLARED unconstitutional (and so, then, your having originally run afoul of it also declared inconsequential).

@abc gum wrote: “It’s not a matter of if, it is a matter of when.”

Gregg DesElms’s reply: Maybe for you… I dunno. But I, for one, FOLLOW THE LAW. See above. The only people who should be worried about it being a matter of “when,” and not “if,” are those who tempt fate by breaking the law…

…or, in fairness, perhaps by only APPEARING to have so done if it’s, in fact, true that Righthaven has been reckeless about whom it pursues.

I’m sorry to take this position where I know it is so unwelcome. But it’s time the entire situation is seen for what it actually is, and not what some around here wishes it were. I’m not saying the LVRJ, et al, is blameless or innocent or isn’t behaving badly. All I’m saying is that… well… maybe this joint should develop a little more respect for the law, no matter how much it disagrees with it. If it spent as much energy on getting the law changed as it does whining about it, maybe something good could happen.

And, by the way, by way of disclosure: I have never even read the LVRJ, much less know anyone there, or have anything to do with it. Ditto Righthaven. Nor am I a plaintiff’s attorney. I’m not expressing these opinions because I have some kind of vested interested. I’m expressing them because right is right, and wrong is wrong, and fair is fair…

…and at least SOME folks around here would at least SEEM to have gotten all confused about that.

Sorry to have raised anyone’s hackles.

Gregg L. DesElms
Napa, California USA
gregg at greggdeselms dot com

average_joe says:

Re: Re: Re: Hmmm. I think maybe I don't completely get it

Great post, Gregg. It’s nice to read an intelligent comment on techdirt.

When LVRJ sells the rights to its content, the same rules apply. Unless otherwise agreed to by the parties, the value of the content includes any potential (or actual) judgements in its favor which exist at the time of its sale, as well as any potential (or actual) judgements against it at that time.

If the content’s copyright had been violated prior to its sale, then the potential value of whatever judgement may be ultimately won as a result transfers with the sale of the content to its new owner… just like any other, in effect, receivable.

Well, the UCC doesn’t cover the sale of copyrights, and it’s not controlling here. Actually, the presumption is that the buyer of the copyright is NOT buying the accreted rights to sue. If the contract is silent, then the buyer is only getting the usual bag of rights, i.e., distribution, reproduction, derivation, etc. In order for the accreted rights to sue to be transferred, the contract must explicitly state as much.

Hope you see you around more often.

Chuck Lane (profile) says:

For what it's worth ...

I just visited the Las Vegas Review Journal and entered “Righthaven” into their search window. And I got back nada. Zero returns. I tried it again, using each of their suggested time-frames. Again, no returns for “Righthaven”, or right haven, or a couple of other combinations.

I do realize that this means practically nothing, but it did seem odd to me, especially since I’ve seen the name used in their editorials. Including the word “righthaven”, along with all the usual naughty words in the blocked list, does seem a bit odd.

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