Are Newspaper Copyright Lawsuits Fair Enforcement or ‘Legal Extortion’?

To put it mildly, Dean Mostofi is a minor player in the blogosphere. A self-employed loan auditor in Rockville, Md., Mostofi maintains a primitive website where he posts press releases and newspaper articles about the financial industry, the law and other things that interest him.

“I haven’t generated a dollar from it,” Mostofi said. “I get maybe twenty hits a day.”

Unfortunately for Mostofi, one of those hits came from a company called Righthaven, which was hired by a Nevada newspaper publisher to sniff out copyright violations on the Web.

Righthaven discovered that Mostofi had republished an article from the Las Vegas Review-Journal — a nine-paragraph news story about a Nevada Supreme Court decision. Claiming that the copyright infringement had caused “irreparable harm,” Righthaven surprised Mostofi with a lawsuit that seeks to shut down deanmostofi.com and demands unspecified monetary damages.

“It’s legal extortion,” said Mostofi, who fears he may be forced to pay a cash settlement to avoid the expense of a court fight. “They’re going after small bloggers who can’t afford representation.”

Mostofi is among dozens of website owners who’ve been sued this year by Righthaven and its partner, Stephens Media Group. Stephens owns the Review-Journal and more than 40 smaller newspapers, mostly in Nevada and Arkansas.

While there’s long been simmering tension between mainstream news organizations and bloggers who republish articles, Stephens’ aggressive legal strategy is unprecedented in the news industry. It’s being closely watched by other publishers, while being widely condemned in the blogosphere.

“This is a classic battle between the old media and the new media, and the Internet is at stake,” said New Hampshire attorney Jeffrey Newman, who represents another blogger hit with a lawsuit. That blog, emtcity.com, which caters to emergency medical personnel, was sued after a visitor posted a Review-Journal article in a discussion forum.

“Billions of infringements”

Since early spring, Righthaven has filed about a hundred lawsuits in federal court alleging infringement of Stephens’ copyrights. While many target small-time bloggers such as a Boston woman who writes about her cat, others are directed at for-profit companies such as the gambling site Majorwager.com, or advocacy groups such as the National Organization for the Reform of Marijuana Laws. The suits are filed without warning; website owners are given no opportunity to remove the offending material before they’re slapped with litigation.

“Our goal is to make sure our intellectual property rights are respected,” Stephens Media general counsel Mark Hinueber said in a phone interview. “We were seeing our entire work product in some stories just being right-clicked and cut and pasted into blogs, where people were selling Google ads around them and making money.”

The legal strategy is an effort to limit infringement and make copyright enforcement a profit center. In a blog post explaining the lawsuits, Review-Journal publisher Sherman Frederick said Stephens Media “grubstaked” Righthaven, meaning it provided venture capital in exchange for a share of whatever money the new company brings in.

Righthaven searches the Web for articles that originated in the Review-Journal or other Stephens papers. The company acquires the articles’ copyrights, which allows it to pursue infringement claims without the newspaper getting directly involved in the litigation.

Righthaven typically offers defendants the opportunity to settle the cases out of court to avoid the substantial cost of a trial. While the details of such settlements are confidential, the Las Vegas Sun reported that 22 of the Righthaven suits were settled as of Aug. 18, with known settlements ranging from $2,185 to $5,000.

(During a federal court hearing last week in the case of the Boston cat blogger, Righthaven estimated its costs to file the lawsuit were in the ballpark of $1,500, while the judge seemed to press for a settlement of less than $1,000. The case remains unresolved.)

“There are probably billions of infringements out there that need to be addressed,” said Righthaven CEO Steve Gibson, who sees his company’s work as helping to preserve the newspaper industry and advance the First Amendment.

“If people take others’ property in the form of their copyrights and divert traffic, and if folks on the Internet are allowed to continue to behave in such fashion, many of our fine press institutions may very well fall on even harder times,” Gibson said.

Gibson, an intellectual property attorney, takes a no-nonsense approach to his work and discloses little about Righthaven’s operation. In a phone interview, he wouldn’t discuss the company’s financial arrangement with Stephens Media nor reveal what criteria Righthaven uses to assess the merit of potential lawsuits. He said his firm’s business plan — and even its mission statement — are “competitive information.”

Anger on the Web

Some of Gibson’s reticence to talk in detail about his company may be the result of the harsh beating Righthaven has taken from critics in the mainstream media and on blogs.

Outside of one complimentary column in a Las Vegas entertainment weekly, reaction to Righthaven’s actions has been overwhelmingly negative. One blogger, University of North Dakota law professor Eric Johnson, referred to the company as a “thugster stooge.” A Facebook page for Righthaven opponents attacks the lawsuits as a “witch hunt.” Wired Magazine compared Righthaven to “patent trolls” — companies that buy patents to products they never intend to manufacture, just so they can sue makers of similar products.

“This appears to be not really about traditional copyright infringement, but really is a litigation mill,” said Cindy Cohn of the Electronic Frontier Foundation, a nonprofit legal organization that defends Web users’ rights.

The foundation helped defendants in similar mass lawsuits aimed at people who shared movies or music online. Now, Cohn says it likely will jump into some of the Righthaven cases. “I’ve always been concerned that this was a business model that some lawyer was going to pick up on,” she said.

Cohn says it’s especially galling that Righthaven files its lawsuits without first asking website owners to remove the copyrighted material. Typically, media organizations send so-called “take-down notices” — simple requests for the article to be deleted — to people who repost articles without permission.

“The fact that they sue first, rather than do a notice to get the thing taken down, strikes me as what you do when you’re after the money,” Cohn said.

Executives at other newspapers say take-down notices can easily resolve most copyright conflicts without litigation. “Generally we don’t even do it through lawyers,” said Seattle Times Executive Editor David Boardman, who is an officer of the American Society of News Editors. “Normally all it takes is a call or note or e-mail or letter to somebody just saying, ‘Hey, you’re in violation of our copyright. Please take it down.’ More often than not, they do.”

In certain situations, federal law actually requires take-down notices before suits are filed, such as when the website owner has registered with the U.S. Copyright office, and the infringing material is posted by a visitor to a site without the owner’s knowledge. (That’s what protects YouTube, for instance, if somebody posts a video of a copyrighted sports telecast.)

But the narrowly-written law isn’t likely to apply in many of the Righthaven cases, where website owners posted the newspaper articles themselves. “We don’t believe that in any of the cases we’re bringing, there’s any reasonable defense,” said Gibson, the Righthaven CEO.

And he’s unapologetic about filing the lawsuits without sending take-down notices first, arguing that issuing notices is expensive for newspapers and does little to stop copyright theft. “If people are copyright infringers and all they have to face is a take-down letter, people have little or no deterrence on that behavior,” Gibson said.

“It’s kind of a game of Whac-A-Mole,” adds Hinueber, the Stephens Media attorney. “I’ve sent cease-and-desist letters, and then the person takes down the story, and a week later or a month later the stuff starts appearing again.”

A legal victory but a PR defeat?

Even legal experts who criticize Righthaven’s tactics concede that the letter of the law is on the company’s side in many of the suits, especially when entire newspaper articles were cut and pasted word for word. In such cases, it matters little whether a defendant is a large corporation or a small-time blogger, whether reposted material was seen by millions of people or just a handful, or whether it was posted with malicious intent.

“The majority of situations would constitute copyright infringement,” said Kimberly Isbell, an attorney at Harvard University’s Berkman Center for Internet and Society. While she says Righthaven’s legal strategy “probably smells bad,” that’s not likely to help most of the defendants fend off the lawsuits.

Still, even if Righthaven succeeds in winning the majority of the cases or negotiating favorable settlements, the effect on Stephens Media’s newspapers is unclear. The lawsuits have attracted a wave of negative publicity in Nevada (much of it from the Las Vegas Sun, the Review-Journal’s competitor), and a handful of cases have especially threatened the Review-Journal’s reputation.

Suits against the Nevada Democratic Party and a progressive advocacy group led to allegations that the staunchly conservative newspaper was trying to muzzle its political opponents, while suits against conservative websites, including Free Republic and the gun-rights site The Armed Citizen, led to Internet insinuations that the newspaper was somehow in cahoots with the White House.

Meanwhile, at least one of the cases amounted to the Review-Journal suing its own reporter’s source. Las Vegas businessman Anthony Curtis was sued for posting on his blog a newspaper column that consisted solely of results from an economic survey Curtis himself had conducted and shared with the columnist.

“They’re just coming across as abusive,” said University of Nevada, Las Vegas journalism professor Stephen Bates. “I think it’s just terrible public relations.”

While Stephens Media officials adamantly deny the political allegations (“Paranoia,” responded the Review-Journal publisher on his blog), they admit some missteps in the flurry of lawsuits. For instance, Hinueber, the company attorney, says Righthaven now is “much more sensitive” to the issue of suing the newspapers’ own sources. “Righthaven is an evolving business model,” he said, noting that the company is scrutinizing individual cases more carefully before filing suit.

But Hinueber stressed that the aggressive litigation strategy will continue. Last week, WEHCO Media announced that it intends to work with Righthaven. (WEHCO owns the Arkansas Democrat-Gazette and the Chattanooga Times Free Press, and it co-owns several small northwest Arkansas papers with Stephens Media.)

And Righthaven has made no secret of its efforts to attract other media organizations as clients for its copyright enforcement services.

“If you’re operating in the Internet space,” Hinueber said, “you need to be cognizant of the laws that exist.”

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