Bloggers vs. Righthaven

The Media Bloggers Association has filed an amicus brief against a company which exists for the sole purpose of suing bloggers.

The Media Bloggers Association, of which I am a longterm member, has filed an amicus brief in Righthaven LLC v. Hyatt, one in a series of suits by a company which exists for the sole purpose of suing bloggers.

Righthaven is a Nevada LLC (hereinafter, “Righthaven”) with the most questionable of business models. It was formed by an attorney who, instead of simply representing copyright plaintiffs in justifiable cases, chose to create an entirely champertous enterprise out of unsound copyright claims. Its “business model” is to seek out unwitting and, perhaps, careless bloggers who have used portions of the Las Vegas Review Journal in online discussions. Once Righthaven finds these uses by conducting internet “sweeps,” it fallaciously “acquires” the rights to the articles in question, essentially as causes of action, solely for the purpose of filing a lawsuit.

The vast majority of the victims of this scheme are under the impression that by giving proper attribution to a source, they are within their rights to use such excerpts. Almost none of them could ever afford legal representation; flummoxed by the threat of a $150,000 potential statutory damage award – an amount that it can safely be said none of them could dream of satisfying – and lacking even a clue as to whom to turn to for advice, many will simply default.

Righthaven now seeks to turn a default into a windfall by asking this Court to grant it a constitutionally impermissible and outrageous award of at least $30,000 in statutory damages, ranging up to $150,000.00 in this matter, in addition to $1,850.00 in costs and attorney’s fees – all based on specious infringement claims for forgotten newspaper articles whose economic value is surely orders of magnitude below these astronomical sums.

While bloggers operate under Fair Use principles, there’s little doubt that some of us cross the line on occasion. Partly, that’s because the line is far from bright. Mostly, it’s because people mistakenly think everything on the Internet is in the public domain.

I’ve been blogging for a little over eight years now and have written 21,594 posts on OTB alone over that time. I’ve received less than a half dozen complaints about copyright claims, all of which were resolved amicably and speedily. (I was also erroneously included in a lawsuit involving a blog with which I’m only tangentially affiliated and had that dismissed — with the help of Ron Coleman.)

Having one’s copyrighted materials misappropriated is frustrating and, in some cases, actionable. But the remedy for a small website is almost always a DMCA takedown notice, not a lawsuit. But, as the MBA amicus alleges, Righthaven isn’t interested in protecting intellectual property rights but in scaring people into coughing up money.

The entire brief is below:

MBA-Righthave-Amicus-Brief

FILED UNDER: Blogosphere, Law and the Courts, US Politics,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Matt B says:

    A great (free) resource/primer on Fair Use is Fair Use: the comic book. Though written first and foremost for filmmakers, it’s a good primer on Copyright (and Creative Common and Copy Left). Plus it’s vetted by Duke’s Law School:

    http://www.law.duke.edu/cspd/comics/digital.php

  2. Steve Verdon says:

    Ahhhh the virtues of intellectual property laws…I know lets have more!

  3. Matt B says:

    Steve,

    I can’t tell if your sarcastic here (or not)… I generally follow Lessig on most of this. Copyright has gotten ridiculous and repressive in terms of extension. The modern corporate form has really complicated this. The comic deals with the excess pretty well.

    That said, I do want to have the option of protecting my work. Though I typically use CC attribution and public remix, if someone’s going to initially profit off my ideas (either directly or indirectly) I do want some credit.

  4. Steve Verdon says:

    I was being sarcastic, with the last part. We’ve gone way to far in regards to intellectual property rights.

    Interestingly firms/industries that start out with little or no IP protections are often vibrant and innovative. Then as they age and incumbents often look for greater and greater IP protections. The industry then becomes much more statics and less innovative. A lesson for the economy as a whole?

    BTW, I recommend the works of David Levine and Michelle Boldrin on IP. Google should get you what you need….if you are interested.

  5. Matt B says:

    Interestingly firms/industries that start out with little or no IP protections are often vibrant and innovative. Then as they age and incumbents often look for greater and greater IP protections. The industry then becomes much more statics and less innovative. A lesson for the economy as a whole?

    Trust me, I have lived this. In fact, I’m the co-inventor (the parent corp is the holder) of one completely ridiculous patent. In part it’s an aspect of the entire barter with IP move that corporations do on a regular basis.

    The only think that makes me feel slightly ok about the entire thing is that at least its a patent and not a copyright. Given the the history of “Snow White,” there’s currently no reason to expect that as we get close to 2032 and the films final lapse into public domain (95 years! after it was made) that Congress won’t extend the rights again.

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