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September 2010, Week 3

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Unprecedented And Chilling Copyright Effort

Copyright Enragement

By Megan Tady

In These Times (web only)

September 16, 2010

http://www.inthesetimes.com/article/6449/copyright_enragement/

Bloggers beware: a company is scouring the Internet for
copyright infringement, and then filing lawsuits against
virtually any website that hosts Las Vegas Review-Journal
articles.

The company, called Righthaven, has filed more than 120
lawsuits since March against bloggers, nonprofits, and
political and community organizations for purportedly
violating copyright law. While other news organizations,
like the Associated Press, have attempted to crack down on
blogs and other websites that re-post their content,
Righthaven's actions mark an unprecedented and chilling
copyright effort by the newspaper industry.

Righthaven is essentially a "copyright enforcement partner"
for the Review-Journal; the owner of the newspaper, Stephens
Media LLC, has invested in Righthaven. The outfit trolls the
Internet for red flags, buys the copyright for an article
after it finds a possible copyright infringement, and then
sues the blogger or website host. The company typically
seeks a steep $75,000 in damages for one copyright
violation, and asks that the alleged offender relinquish his
or her Web domain name.

These harsh penalties are quickly threatened, catching users
off guard and often scaring them into settling out-of-court,
even if their cases could fall under "fair use" under
copyright law. Righthaven has sued people for sharing entire
articles, linking to an attributed article, or even hosting
a forum where readers include links to articles in comment
sections.

Undoubtedly, copyright infringement poses a serious
challenge to a newspaper industry deeply threatened by the
Internet. But the Review-Journal's punitive process could
stifle speech online from those fearing a lawsuit, tie up
the court system with benign cases, and prop up a disturbing
business model based on ad hoc lawsuits and defendants'
panic.

Cindy Cohn, legal director for the Electronic Frontier
Foundation (EFF), said her organization is troubled by what
appears to be a "lawsuit mill." EFF is sifting through the
cases and considering how to help defendants. "They're just
bringing a whole lot of copyright lawsuits and figuring they
can shake down enough money from enough people to make
themselves a tidy profit," Cohn said.

The Review-Journal/Righthaven sweep is particularly
shocking, she said, because the company is not following the
traditional protocol of simply notifying websites to take
down legally questionable postings of content. "They're
basically suing people first," she said. "They're not giving
any cease and desist notices. ... It really reflects that
it's a business proposition to them and not about copyright
infringement."

The Las Vegas Sun, a competitor of the Review-Journal, has
been outspoken in its disdain for the newspaper's new
practice. In a blog post, one of the paper's reporters
wrote:

    [W]e've dealt with this by attempting to convert
    infringers into allies. Instead of suing them without
    warning, we ask that they take down our material and
    replace it with a link and at most a paragraph or two
    from the story. Such links drive traffic to our site,
    which is a good thing, especially for our advertisers.
    ... Granted, we're not out aggressively searching for
    past copyright infringements and if we did, no doubt
    we'd find thousands. Frankly, we're too busy with other
    things, like covering the news.

No one has been able to quantify how or if news piracy on
the Web affects newspapers' bottomlines or contributes to
newsroom closures and layoffs, The Sun notes.

Eric E. Johnson, a law professor at the University of North
Dakota School of Law, offers even more scathing analysis of
the Review-Journal's actions. While Righthaven may have the
upper hand in many suits where people paste entire news
articles on their site, Johnson writes, "[f]iling federal
lawsuits against frightened individual bloggers who are
without significant legal or financial resources, and doing
so without any attempt whatsoever to resolve the dispute
informally, is deplorable behavior." The Review-Journal
looks like "a pack of feral alley dwellers instead of an
earnest news organization that is deserving of the public
trust."

Despite these rebukes, Righthaven's business proposition
appears to be growing. Another newspaper chain in Arkansas,
WEHCO Media, which controls 28 papers in the state, has
recently become a Righthaven client.

Does this mean that newspapers will increasingly turn to
small copyright lawsuits to bolster waning profits? It's
unclear, but the fact that doing so would be a grave mistake
isn't. While newspapers understandably want to protect their
content, they should also want their stories and photographs
to travel far and wide to entice a new - and hopefully
growing - audience to their site. Remaining in a print
bubble and relying on a closed online distribution model
smells like a funeral for the already dying newspaper
industry.

"I understand that the powers that be in journalism are very
concerned because their business model doesn't work anymore
in an era of Craigslist and free classified ads," Cohn said.
"But the idea that suing the audience is the answer, or in
this instance, the small bloggers who are drawing attention
to the work that you've done, is going to save journalism...
I don't think that anybody who seriously thinks about the
future of journalism thinks this is the answer."

Let's hope that other news outlets will approach copyright
issues with dignity, fairness and an appreciation for the
power of online viral content. Otherwise, we'll see a
newspaper industry still failing to embrace the Web as it
sinks further and further away from readers.

[Megan Tady is a blogger and video producer for Free Press,
the national nonprofit media reform organization. She writes
a monthly InTheseTimes.com column on media issues. Follow
her on Twitter: @MegTady.]

==========

More about the Electronic Frontier Foundation (EFF)

http://www.eff.org/

From the Internet to the iPod, technologies are transforming
our society and empowering us as speakers, citizens,
creators, and consumers. When our freedoms in the networked
world come under attack, the Electronic Frontier Foundation
(EFF) is the first line of defense. EFF broke new ground
when it was founded in 1990 - well before the Internet was
on most people's radar - and continues to confront cutting-
edge issues defending free speech, privacy, innovation, and
consumer rights today. From the beginning, EFF has
championed the public interest in every critical battle
affecting digital rights.

Blending the expertise of lawyers, policy analysts,
activists, and technologists, EFF achieves significant
victories on behalf of consumers and the general public. EFF
fights for freedom primarily in the courts, bringing and
defending lawsuits even when that means taking on the US
government or large corporations. By mobilizing more than
61,000 concerned citizens through our Action Center, EFF
beats back bad legislation. In addition to advising
policymakers, EFF educates the press and public.

EFF is a donor-funded nonprofit and depends on your support
to continue successfully defending your digital rights.
Litigation is particularly expensive; because two-thirds of
our budget comes from individual donors, every contribution
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Contact EFF

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