Saturday, March 19, 2011 | 12:35 p.m.
One year ago, U.S. newspapers and broadcasters could feel confident they controlled the news content they created.
It was understood that competing and special-interest websites couldn't appropriate that content and post it without authorization.
When such infringements occurred, they were dealt with swiftly and effectively with a simple phone call or email.
Infringing websites typically had re-posted material out of ignorance they were violating the Copyright Act and agreed to remove the material or replace it with a link to the source newspaper or broadcaster.
Then along came Righthaven LLC of Las Vegas, the self-appointed protector of the newspaper industry from such news sharers.
Some 250 Righthaven lawsuits later, Righthaven's startling achievement is that newspapers now have less -- not more -- protection from copyright infringers.
Righthaven may argue its lawsuits have deterred rampant online infringements of newspaper material -- but there's no proof that infringements it usually targets involving bloggers and special-interest websites ever affected newspaper revenue in the first place.
Keep in mind Righthaven doesn't sue local news competitors of the Review-Journal and the Denver Post and it doesn't sue big news aggregators like Yahoo and Google -- likely because it can't find infringements by these sites.
Back to the lawsuits: Just two of Righthaven's lawsuits have been closed by judges on the merits -- both now resulting in fair use losses for Righthaven and its partners at the Las Vegas Review-Journal.
While these aren't binding precedents upon other judges, these rulings can now be used by special-interest websites to justify their postings of what used to be copyright-infringing content. These, clearly, are setbacks for all newspapers interested in protecting their copyrights.
There's little doubt that many of Righthaven's lawsuit targets in fact infringed on copyrights for material that originally appeared in the Review-Journal or the Denver Post.
In these cases, the misappropriated material ran alongside advertising on the infringing websites and sometimes the material wasn't even credited to the Review-Journal or the Post. These sites generally settled, or are settling, the Righthaven lawsuits against them.
Still, if these defendants had fought the suits, Righthaven likely would have won only minimal damages. That's because most of these websites are so obscure that no judge or jury would find their use of the material from the Review-Journal or the Post materially harmed either newspaper -- both of which still offer the material for free on their websites.
There have been some big exceptions like the Drudge Report and Citadel Broadcasting, but most of these lawsuits are against websites few had ever heard of -- cat blogger Allegra Wong's site, for instance.
Another strike against Righthaven is that judges are likely to find copyrights obtained exclusively for the purpose of filing lawsuits are afforded less protection than copyrights held for the usual purpose of delivering the news.
Why aren't more of these defendants fighting Righthaven? Faced with tens of thousands of dollars in legal defense costs, potential damage awards of $150,000 and seizure of their domain names, attorneys usually say it's smarter to settle for a few thousand dollars. This use of the courts as an ATM machine by Righthaven hasn't gone unnoticed by the federal judges presiding over these cases.
U.S. District Court for Nevada Judge James Mahan, in striking the latest fair use blow against Righthaven on Friday, announced a decision that to me would have been unthinkable one year ago: A nonprofit was protected by the fair use doctrine in posting an entire Review-Journal story without authorization.
I wasn't the only one thinking that way. In initially responding to the lawsuit at issue, the defendant's attorneys didn't even argue fair use. It was Mahan who put that issue on the table.
If this decision is adopted by other judges and upheld on appeal, it would mean any nonprofit could post without authorization entire stories from the Las Vegas Sun or any other newspaper -- and presumably television and radio reports as well.
Keep in mind the story at issue wasn't a four-paragraph rant about the TSA or a five-paragraph report on a shooting.
For her 33-paragraph June 2010 story on Las Vegas police arresting illegal immigrants on misdemeanor charges, and authorities later deporting them, R-J reporter Lynnette Curtis interviewed multiple sources and clearly spent a good deal of time researching and writing the piece.
Mahan commented Friday that, "No disrespect to the reporter," but Curtis's story was essentially an information piece and didn't involve a level of creativity that would have afforded it greater copyright protection.
If the case had gone to a jury though, jurors may have heard about the amount of planning and work involved in executing such a story. They may also have heard about the substantial costs newspapers face every day to maintain buildings and equipment and to pay their staff to produce these types of stories for both their print and Internet audiences.
Including the editing work, in this case you have a substantial piece of journalism that's clearly of value to the R-J and its readers.
But now, according to Mahan, any nonprofit can appropriate the story for its own use and there's nothing Righthaven or the Review-Journal can do about it.
Mahan, during hearings on Friday and in December on the lawsuit against the nonprofit that posted the story, made it clear a big problem he had with the lawsuit was that it was filed without warning or a takedown notice by Righthaven and that Righthaven's copyright for the story is of dubious value since it only uses its copyrights for lawsuits.
If the Review-Journal had filed the lawsuit, rather than Righthaven, the R-J may have received a more sympathetic hearing since the R-J uses its copyright-protected material for the traditional purpose of delivering the news.
But then, if the R-J had called or emailed the nonprofit, the Center for Intercultural Organizing (CIO) in Portland, Ore., there would have been no lawsuit as the CIO appears to be a responsible organization that would have removed the story.
Mahan made three key points Friday that no doubt have occurred to other judges handling these cases: The lack of a takedown request or order hurt Righthaven's cause, the nonprofit status of the defendant weakened the lawsuit and -- most importantly for pending and future Righthaven cases -- the CIO's use of the story did not harm the market for the R-J story.
That's because, like the vast majority of Righthaven defendants, the CIO operates a special-interest website that in no way competes with or diverts business from the R-J website. In fact, it can be argued that most of these special-interest sites help the R-J and the Denver Post by stimulating interest in the R-J, the Post and their coverage of specialized topics.
Further hurting the cause of the R-J and Righthaven, and probably the Post down the road, is that Righthaven critics are pointing out there can be no market harm proven in these lawsuits since there is no market -- that is, Righthaven owns the copyrights and doesn't use or license them except for lawsuits.
This was a point made to Mahan during Friday's hearing by professor Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California-Berkeley.
Schultz had filed a friend of the court brief listing reasons the suit could be dismissed on fair use grounds and also arguing the Review-Journal had encouraged the online posting by the Oregon center by suggesting that readers share its news online.
Schultz's testimony against Righthaven was sponsored by the online free speech group the Electronic Frontier Foundation (EFF), which is fighting Righthaven and Review-Journal owner Stephens Media LLC in a few other copyright cases.
Kurt Opsahl, an EFF senior staff attorney who attended Friday's hearing, said the two fair use rulings against Righthaven have not weakened the newspaper industry's ability to stop legitimate copyright infringements involving content where there's a true market for the content at issue.
Schultz said the rulings weakening Righthaven's copyright claims should serve as a warning to the newspaper industry about doing business with Righthaven.
For newspapers trying to protect copyrights, "You don't want to give wins to the other guys," he said.
"The newspaper industry has to be careful about supporting the Righthaven business model," Schultz said. "If the newspaper industry is depending on copyright lawsuits, it's in a bad way. It's not going to be a good model. It should not rely on lawsuits."
Shawn Mangano, the attorney representing Righthaven during the hearing, said the company is hopeful Friday's fair use ruling against it will be struck down on appeal by the 9th U.S. Circuit Court of Appeals because of what Righthaven calls factual and procedural errors by Mahan.
Righthaven is also hopeful the 9th Circuit will reverse or at least modify Righthaven's first adverse fair use ruling by U.S. District Judge Larry Hicks in a lawsuit over the partial posting of a Review-Journal story by a Las Vegas real state agent.
Righthaven is likely to point out in its appeals that prior to ruling, neither Mahan nor Hicks allowed the parties to gather evidence about the alleged infringements through discovery. This lack of a factual record about the use of the R-J material at issue may undermine those rulings.
Friday's ruling against Righthaven was just strike two in what could become an expensive losing streak for the Las Vegas company.
Righthaven and its investors -- Las Vegas attorney Steven Gibson and an affiliate of Stephens Media -- now face seven counterclaims and mounting legal costs in the litigation campaign.
There's a real chance these counterclaims could yield further adverse rulings and awards of hundreds of thousands of dollars in attorneys fees against Righthaven on four points not covered by Mahan on Friday:
• That Righthaven's copyright claims are compromised by the fact that the Review-Journal and the Post encourage the online sharing of their material.
• That Righthaven's standard domain-seizure lawsuit demand will be struck down and judges will use this against Righthaven, perceiving it as an unfair tactic aimed at coercing settlements.
• That Righthaven's copyright assignments from Stephens Media are flawed in that Stephens Media maintains an economic interest in the content covered by the copyrights. This obscure legal point is likely to explode in the coming months as EFF attorneys representing the Democratic Underground and Righthaven attorneys fight over whether the law allows lawsuits over copyrights obtained for the sole purpose of litigation.
• That Righthaven's copyright claims over a Denver Post TSA pat-down photo could be compromised by the fact the photo went viral and the alleged infringers found it on websites other than the Post website -- meaning they had no idea they were infringing on material initially published by the Denver Post. Further complicating these cases is that The Associated Press has reported it distributed the photo at issue to news outlets, further muddying the waters about how anyone was supposed to know it was a Denver Post/Righthaven photo.
Elsewhere in the Righthaven litigation campaign, the company continues to run into trouble with its lawsuits because of its policy of suing first and asking questions later.
At least four of its lawsuits in U.S. District Court for Colorado over a Denver Post TSA pat-down photo are giving Righthaven trouble:
• A suit involving North Carolina blogger Brian D. Hill is a case that Righthaven would like to see go away. Only after suing Hill did Righthaven learn Hill has diabetes, hyperactive attention disorder and mild autism -- facts Hill has been communicating to the world on his websites and in an online petition urging U.S. District Judge John L. Kane in Denver to dismiss the suit against him. His attorney, in the meantime, is friendly with the EFF and is drafting a lengthy response to Righthaven's lawsuit that Righthaven will have to deal with if the case isn't settled.
• An attorney for Glenn Church, who was sued in Colorado over the Denver Post photo on Jan. 27, has informed Righthaven that Church had filed for bankruptcy on Dec. 30 in San Jose, Calif. This may mean extra work for Righthaven as it will have to ask the bankruptcy court for permission to continue the litigation -- assuming Church has money or assets that Righthaven wants to go after. Righthaven's lawsuit against Church alleges the photo at issue showed up on Church's website, foolocracy.com.
• Righthaven's lawsuit against Pajamas Media Inc. remains on hold after Pajamas Media Inc. said it was wrongly sued as it is a suspended California corporation that is not operating, has no assets and has no connection to the Pajamas Media website pajamasmedia.com.
• After suing Baltic Enterprises LLC and StrangeCosmos.com, Righthaven was informed by their attorney that "another individual and/or entity has been improperly operating under the name Baltic Enterprises L.L.C." and it's that party Righthaven will have to track down and sue.
In other Righthaven developments, U.S. District Judge Gloria Navarro in Las Vegas on Friday granted defendant and counterclaimant Thomas Neveu's motion that the case be put on hold for six months.
Neveu asked for the stay and that his case be sealed because of health reasons. Navarro declined to seal the case.
In a filing of nonopposition to the request for a stay, Righthaven attorneys denied assertions by Neveu that Righthaven had publicly disclosed information about his health situation.
Also, Righthaven dropped its motion for a clerk's default against New Hampshire blogger Christopher Malley and his website EMTCity.com, serving the emergency medical technician community.
Righthaven attorneys disputed charges by Malley's attorneys, who said the default motion violated a rule requiring Righthaven to confer with counsel for defendants before filing such motions. Righthaven attorneys said they had called Malley's counsel with the law firm Lewis and Roca LLP on the day they filed the default motion, but there was no response from Malley's counsel.
With the default motion out of the way, Lewis and Roca filed a response to the lawsuit -- which has already been heavily litigated through motions for dismissal that went against Malley -- with the usual denials and defenses against Righthaven.
These include fair use, that Righthaven's lawsuit is barred by the First Amendment, that the claim is too trivial to pursue, implied license, copyright misuse, alleged fraud upon the Copyright Office, barratry, champerty and that Righthaven lacks standing to sue.
Righthaven has not yet replied to that filing.