Lawyers argue R-J stories on Web aren’t protected by copyright

By Steve Green

Saturday, Sept. 25, 2010 | 2:05 a.m.

By allowing people to read its stories online for free, the Las Vegas Review-Journal is essentially giving away those stories, and recipients of the articles are free to display them on their own websites.

At least that’s the theory suggested by one of the latest group of lawyers to sign on to represent one of the website operators being sued for copyright infringement by the Review-Journal’s copyright enforcement partner, Righthaven LLC.

Righthaven is a Las Vegas company that through Friday had, since March, sued 136 website operators in federal court in Las Vegas. Righthaven detects online infringements of stories owned by Stephens Media LLC, obtains copyrights to those stories from Stephens Media and then sues over the retroactive alleged infringements.

Stephens Media, which owns the Review-Journal, has participated in the litigation by investing in Righthaven and providing the copyrights that are the basis of the lawsuits. The Review-Journal says the suits are necessary to stop widespread online infringements of its copyrights, though defense attorneys and critics say the lawsuits seem more about making money than protecting copyrights.

That’s because defendants are typically sued without having received requests to remove the infringing material and/or replace it with links — such requests or demands being the usual practice in the newspaper industry.

One of the Righthaven defendants, HerbalScience Ltd. and the Himalaya Drug Co., were accused in an August lawsuit of posting on a blogsite, www.fighthangover.blogspot.com, a June 5 Review-Journal story about Walgreens deciding to sell alcohol at its Las Vegas stores.

Himalaya says on its website it owns Himalaya Herbal Healthcare, with global headquarters in Bangalore, India, and a U.S. office in Houston.

HerbalScience and Himalaya are now represented in the litigation by Las Vegas attorneys Mark Borghese and Ryan Gile of the law firm Weide & Miller Ltd.; as well as Houston attorney John S. Egbert.

In their response, the attorneys offered several defenses that are similar to those seen in other Righthaven cases, such as fair use and that jurisdiction of the Nevada court isn’t proper because the defendants aren’t based in Nevada.

Righthaven in another lawsuit has overcome the jurisdictional argument in the case of an alleged out-of-state “willful infringer.” It’s unclear if HerbalScience and Himalaya would be considered “willful infringers.”

The HerbalScience/Himalaya attorneys also argued against Righthaven:

• “Plaintiff’s claims are barred because the statutory damages sought ($75,000) are unconstitutionally excessive and disproportionate to any actual damages that may have been sustained in violation of the (Constitution’s) Due Process Clause.”

• “Plaintiff has failed to use reasonable diligence and due care to mitigate damages, if any even exist, by its delay in bringing the claim to defendants’ attention. Moreover, plaintiff knew defendants would have likely removed the work (story) in haste and without the need for litigation upon receipt of a less-costly inquiry or cease and desist letter. Subsequently, plaintiff’s costs and fees in initiating this action are both needless and unreasonable.”

• “Plaintiff’s complaint is barred due to the doctrine of copyright misuse. Among other things, plaintiff is not seeking to protect its copyright rights or stop infringing activity. Plaintiff seeks to obtain money in excess of the fair and reasonable value of the claimed infringement and obtain compensation for its needless and unreasonable expenditure of legal and filing fees.”

But perhaps their most interesting defense is that Righthaven’s claims are barred under Section 109 of the copyright law covering “limitations on exclusive rights: effect of transfer of particular copy;” and “the doctrine of exhaustion.”

Borghese explained the theory is based on the fact that the source of the stories at issue in the lawsuits is a publicly available web page.

When a user visits a web page, the user’s browser downloads a copy of that web page.

“Thus, the Review-Journal has explicitly or implicitly authorized its website users to make a copy of the article,” Borghese said.

“Once a lawful copy of an article is obtained, any person in possession of such lawful copy may display or otherwise dispose of that copy without authorization of the copyright owner” under Section 109, he said.

He said the only exception is when a person obtained the copy through rental, lease, loan or a similar mechanism.

“There is nothing stated on the Review-Journal website that the website is renting or leasing its stories to its users,” Borghese said.

The Review-Journal website includes this note about use of its content: “All information, content, services and software displayed on, transmitted through, or used in connection with Stephens Media LLC., is owned or licensed by Stephens Media LLC., a Nevada limited liability company. You may use such content solely for personal, non-commercial use. If you operate a website and wish to link to Stephens Media LLC., you may do so provided you agree to delete the link upon request from us. No other use is permitted without prior written permission.”

(The Las Vegas Sun website’s terms of use are spelled out in its “reader agreement” at http://www.lasvegassun.com/about/useragreement/)

Righthaven has not yet responded to the Section 109 argument against it.

But in other cases, Righthaven attorneys have disputed claims that the Review-Journal provides an “implied license” for website users to display its material since the Review-Journal encourages the online sharing of its stories.

“While the works (stories) were certainly made freely available for viewing via the LVRJ website, the works were not made freely available in order to permit third parties to republish the works’ content for the third parties’ benefit,” Righthaven attorneys wrote in a court brief in another case this week. “An extension of the defendants’ logic would mean that anyone would be free to set up a competitive Internet news site, stock said site full of content published by the LVRJ, yet escape liability for infringement by claiming that the LVRJ permitted this infringing practice.”

Separately, Righthaven filed four more copyright infringement lawsuits on Friday. The latest defendants are:

• Michael Rucker, whom Righthaven says is the registrant of the website MNGunTalk.com. Four Review-Journal stories about Las Vegas police shooting and killing Erik Scott at a Costco on July 10 allegedly were posted on the website.

Court records indicate MNGunTalk user “tweener” posted four stories on the shooting with the note on one: “Saw this one on another forum...”

“Mr. Rucker did not institute any proactive policy of precluding, or attempting to preclude, the postings by others of copyright-infringing content on the website,” Righthaven alleged in the lawsuit, adding Rucker also failed to monitor for and promptly remove such postings.

• Rod Brooks and his website, iama911operator.org, where a Review-Journal story about a 911 call related to the Costco incident allegedly was posted.

The Review-Journal was credited on the two websites as the source of the Costco stories, records show.

• Barry Shermer and Don T. Bradshaw, whom Righthaven says are associated with the Bette Midler fan site www.bootlegbetty.com, where an Aug. 26 Review-Journal story mentioning the entertainer allegedly was posted. The Review-Journal was credited for the post, records show.

• Thomas Chandler, who has a radio show and a website called www.chandlerswatch.com. A July 13 Review-Journal story allegedly was posted there about an obituary in which the deceased urged voters not to re-elect Nevada Sen. Harry Reid. Records indicate the Review-Journal was credited for that post with a tagline.

As is its typical demand in recent suits, Righthaven seeks damages of $150,000 apiece in each of the new lawsuits as well as forfeiture of the defendants’ website domain names.

Requests for comment on the lawsuits were placed with the latest defendants.