Websites beware. Once a mighty empire, the newspaper industry -- an industry that has blamed the Internet for more than a decade’s worth of declining readership and advertising revenues -- is striking back. If you own a website and a newspaper article from the Las Vegas Review-Journal (the “Review Journal”) has been posted on your website then you are in the crosshairs and are at risk of being sued for copyright infringement. Righthaven LLC (“Righthaven”), a Las Vegas-based startup, wants your money and it will take you to federal court to get it. “Grubstaked” by Stephens Media LLC, the publisher of the Review-Journal, Righthaven is making big business out of suing websites whose users have posted copies of Review Journal articles in website discussion threads, forums, and blogs. Righthaven has sued website owners and operators located throughout the United States and Canada for violating U.S. copyright laws.
Since March, 2010, Righhaven has filed approximately 130 lawsuits in the United States District Court for the District of Nevada and it continues to do so almost daily. According to an article about Righthaven in Wired.com, Righthaven’s vision is “to monetize news content on the backend, by scouring the internet for infringing copies of [Righthaven's] client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements.” David Kravets, Newspaper Chain’s New Business Plan: Copyright Suits, http://wired.com/threatlevel/2010/07/copyright-trolling-for-dollars (last visited September 22, 2010). In simpler terms, Righthaven is a copyright troll.
Most of the lawsuits filed by Righthaven are based upon the display of a single Review Journal article on the offending website. The lawsuits allege “willful” copyright infringement. However, in most cases, the articles were posted by third party visitors to the website and not by the website’s owner or operator.
Since Righthaven does not send cease and desist letters before filing suit, many of its targets have reported being taken completely by surprise. Indeed, many alleged infringers have reported that they would have voluntarily removed the newspaper articles from their websites if they had been asked to do so.
In response to these lawsuits, defendants have challenged Righthaven’s standing to sue. The arguments concerning Righthaven’s lack of standing have focused on whether and when Righthaven obtained copyrights in the articles at issue, arguing that absent any ownership rights at the time the complaint was filed, Righthaven lacks standing and the Nevada federal court lacks subject matter jurisdiction. Other standing-related arguments have challenged the validity of the assignments by which Righthaven purportedly obtained the copyrights at issue.
Defendants with little or no ties to Nevada are challenging whether the Nevada federal court can constitutionally exercise personal jurisdiction over them. Many of the defendants that have been sued operate websites from other States, have not conducted business in Nevada, and, in some cases, have never even been to Nevada or have not visited Nevada in years.
In addition to these defenses, several defendants have raised a variety of substantive defenses, including fair use, implied license, the de minimis doctrine, champerty, and barratry.
The fair use defense requires the court to weigh four factors: (1) the purpose and character of the allegedly infringing use, including whether the use was for commercial or nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107. Upon weighing these factors, if the court determines that a defendant’s use of a copyrighted work is a fair use, then the use is not an infringement.
The implied license defense looks to the plaintiff’s conduct to see if the plaintiff has expressly or implicitly consented to the alleged infringement. Some defendants have suggested the existence of an implied license because the Review-Journal posts its news stories on its webpage where they can be viewed for free, displays links that allow persons who view its articles to save, email, or print the articles, and also allows visitors to its site who view its articles to right-click and copy the articles when technical measures are available to prevent the articles from being copied. These defendants have also pointed out that the Review Journal does not post any terms or conditions on its website stating that copying articles is forbidden.
“The legal maxim ‘de minimis non curat lex’ insulates from liability those who cause insignificant violations of the rights of others.” Robert A. Gorman & Jane C. Ginsburg, Copyright: Cases and Materials 435 (5th ed. 1999). In the copyright context this means a technical violation so trivial that the law will not impose legal consequences. Id. Cases involving de minimis infringements are rarely litigated because such cases involve “questions that never need to be answered.” Id. (citing Knickerbocker Toy Co. v. Azrak-Hamway Int’l, Inc., 668 F.2d 699, 703 (2d Cir. 1982) (rejecting toy manufacturer’s infringement claim based upon competitor’s photo of its product)); see also Ringgold v. Black Entm’t T.V., Inc., 126 F.3d 70 (2d Cir. 1997) (two minute use of copyrighted quilt design in television program held de minimis).
“Champerty” concerns the situation where a person with no interest in a lawsuit agrees to finance and bear the expense of litigation in exchange for a portion of the proceeds. The doctrine originated in medieval England where the wealthy would assist poorer members of society by supporting their legal disputes with the wealthy citizen's personal or political enemies. See Del Webb Cmtys., Inc. v. Partington, No. 2:08-cv-00571-RCJ-GWF, 2009 U.S. Dist. LEXIS 85616, at *10 (D. Nev. Sep. 17, 2009). In return for funding the lawsuit, the party to whom the claim actually belonged promised to give his or her benefactor a stake in the outcome. Id. Through this practice, the wealthy became wealthier. Id. “Champerty was a means by which powerful men aggrandized their estates and the background was unquestionably that of private war.” Id. (quoting Osprey, Inc. v. Cabana Ltd. P’ship, 240 S.C. 367, 375 (2000)). Thus, champerty was prohibited at common law and is prohibited by Nevada law today. Id. at *10-12.
Barratry has been described as the “continuing practice of … champerty.” Id. at *9. It has also been described as the “act or practice of bringing repeated legal actions ….” Barratry, http://en.wikipedia.org/w/index.php?title=Barratry&oldid=385272254 (last visited Sept. 22, 2010) (on file with the author). 28 U.S.C. § 1927 “authorizes federal courts to punish barratry by requiring offending lawyers personally to satisfy their opponents’ litigation debts.” Schutts v. Bently Nev. Corp., 966 F. Supp. 1549, 1558 (D. Nev. 1997). (Emphasis added.)
While some of the Righthaven cases have settled, none of the remaining cases have advanced far enough through the litigation process for the Court to consider the merits of these defenses. Thus, it is still to early to tell how the Nevada federal court will rule on these issues.
The implications of the Righthaven cases upon free speech is clear. By appointing itself as the copyright enforcer of the Internet, Righthaven is chilling free speech throughout the country. Techdirt.com, reports “a blogger was just sued by Righthaven … [b]ecause of this, the blogger has taken down their entire blog, because it now represents too big a liability.” The Techdirt.com article was referring to a website called thearmedcitizen.com, who was sued by Righthaven on July 21, 2010, and suspended “all updates and archives” on July 22, 2010. Righthaven, however, seeks to expand its reach. Wired.com reports that Stephens Media runs over 70 other newspapers in nine states and that Righthaven’s CEO states that he already has an agreement to expand his practice to cover those properties. See Kravets, supra. Gibson is further quoted as stating that there are “million” if not “billions” of infringements on the Internet. Apparently, Righthaven intends to pursue every one.
Website owners and operators, however, need not wait in fear of being sued by Righthaven. In her July 29, 2010, post to this blog, my colleague, Nikkya Williams, summarized the procedures necessary for online service providers to take advantage of the “safe harbor” provisions of the Digital Millennium Copyright Act (the “DMCA”) codified at 17 U.S.C. § 512(c). Assuming compliance with its requirements, the DMCA may limit an online service provider’s liability for copyright infringement arising from third party website posts.