Righthaven Continues To Stretch The Meaning Of Copyright Law In Filing Lawsuits

from the more-lawsuits-every-week dept

Thu, Aug 12th 2010 1:58pm — Mike Masnick

Righthaven, the company "grubstaked" by the Las Vegas Review Journal, which is basically going around suing any and every site that posts any of its content, continues to up the ante in abusing copyright law. Every week, it's filing more lawsuits. We've actually been hearing from some of the sites that have been sued, and many are lawyering up to fight Righthaven, because the claims are getting increasingly ridiculous. Righthaven appears to not take into account any of the context of the pages on the sites it's suing. For example, many of the sites it's suing involve users -- not the site owners -- posting content in forums. In those cases, the site owners are almost certainly protected by the DMCA safe harbors (assuming they've set themselves up with the Copyright Office for DMCA safe harbor protections). That doesn't seem to be stopping Righthaven, though, which is making some fascinating (and blatantly wrong) legal claims.

For example, one of its recent lawsuits is against the political forum Democratic Underground, where a user (not the site owner), quoted a mere 4 paragraphs of a 34 paragraph story -- and included a link to the full story. No matter, Righthaven sued. As it does in all of these lawsuits, it's demanding $75,000. The number is carefully chosen, because it's less than what going to court will likely cost. The idea is to just get people to pay up, even if the legal claims are bogus. Beyond the $75,000, it's laughably demanding that the domain name of the site be turned over as well.

Righthaven tries to avoid the obvious DMCA safe harbor issue with the following:

"The defendants' failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the website constituted and constitutes the defendants' willful blindness to copyright infringements occurring on the website ..."

Nice theory. Too bad that nowhere in copyright law does it require service providers to have such proactive policies, and in the various lawsuits where this has been challenged (I'm looking at you, Viacom/YouTube, and you, Veoh/Universal Music) courts have pretty much laughed out loud at the suggestion that sites have any legal requirement to proactively police user generated content.

Given the fact that Righthaven seems to be suing more sites every week (it's about to crack 100, if it hasn't already), it seems like the plan is to basically just sue everyone that a Google search turns up, no matter how dubious the legal merits might be -- and hope that enough sites settle before this operation is put out of its misery. Nearly everything about this setup is questionable. The fact that it doesn't issue DMCA takedowns or alert sites before suing, while legal, can't look good in court. It suggests, quite clearly, that the copyright holder did not make use of clear tools at its disposal to "minimize" any harm. Courts generally don't like that. On top of that, suing site owners for actions of forum users won't look good either. Nor is claiming infringement on just a small snippet of a much longer article that includes clear attribution and a link back. It's difficult to see how anyone at Righthaven can legitimately claim "harm" here.

The only "good" that may come of this is that Righthaven is really doing an excellent job demonstrating what a laughingstock copyright has become.

In the meantime, if you'd like to hear Righthaven's CEO challenged on some of his assertions, be sure to tune into an audio "IP roundtable" from the law firm Bryan Cave on September 8th. Steve Gibson will be on the panel, as will Eric Goldman -- who I fully expect to challenge Gibson on many of his claims. The panel will also include Barbara Wall from Gannett who hopefully will explain why Gannett has chosen not to follow the LVRJ in suing people for advertising their content.

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Filed Under: copyright, dmca, lawsuits, safe harbors
Companies: righthaven

39 Comments

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Anonymous Coward, 12 Aug 2010 @ 2:08pm

"As it does in all of these lawsuits, it's demanding $75,000. The number is carefully chosen, because it's less than what going to court will likely cost."

While I'm sure the number was carefully chosen, I suspect it's not for the reasons you cite.
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Anonymous Coward, 12 Aug 2010 @ 2:19pm

I wonder what the cost of hiring someone to change the lawyers mind is? $10,000 for a crippling beating? $25,000 for an assasination? At some point one of the targets of one of these lawsuits is going to snap and directely attact the plantiff or their lawyers. While it would represent a breakdown of the justice system, I can't find it in my heart to feel bad about it.
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:Lobo Santo (profile), 12 Aug 2010 @ 2:19pm

Re:
Way to go coward! Wooo!

Argue that point with neither proof nor logic to back it up!

Wooo!

(I hope after reading this your self-esteem has risen a little.)
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Bubba Gump (profile), 12 Aug 2010 @ 3:00pm

I have never been for capital punishment.
But...

Reading this article has made me decide that we should legalize assassination (of Righthaven's principals and its lawyers).
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Alan, 12 Aug 2010 @ 3:04pm

Flame-bait
To Loco Santo: How can you back up an emotional response or supposition with logic? Are you a lawyer or something as slimy?
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Anonymous Coward, 12 Aug 2010 @ 3:24pm

get doantions
and GET EVEN
coutner sue for slander , defamation of character, libel, harrassment dream up lots
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:Lobo Santo (profile), 12 Aug 2010 @ 3:24pm

Re: Flame-bait
I believe you're in for a long wait, speaking to someone who isn't present.

In the mean time. AC says "While I'm sure the number was carefully chosen, I suspect it's not for the reasons you cite." To which I respond -- "logic or proof"

Wherein lay your discontent in said repartee?
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NAMELESS.ONE, 12 Aug 2010 @ 3:25pm

p.s it only costs 90$ to file in small claims for 25000$
file 4 of those back at them
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Anonymous Coward, 12 Aug 2010 @ 4:05pm

This matter in no way is a negative reflection on copyright law. What it does reflect is that some parties, for reasons known only to them, use the legal system in ways others believe inappropriate.
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Reed, 12 Aug 2010 @ 4:56pm

Re: Not Negative?
How is it not negative? If a law is written so poorly that it is easy to take advantage of it then it is a poor law end of story.

The very nature and purpose of copyright and intellectual property in general has come under question and increasing scrutiny as we head into the 21st century. Are you denying there are problems?

If our legal system made it clear what was infringement and what was not then we wouldn't even be discussing this case as it would of likely never been filed. This is clearly a failing in IP law.

In my opinion the courts are simply not capable of making these determination without being arbitrary. This is due partly to the enormous gap in judge knowledge about new technology and more importantly to evolving societal beliefs about sharing and collaboration.

If a system isn't working right and we are incapable of fixing it then the best course would be to abandon an already bad idea such as IP.
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Anonymous Coward, 12 Aug 2010 @ 5:15pm

Re: Re:
"Argue that point with neither proof nor logic to back it up!"

I guess your name has to be Masnick to get away with asserting your speculation as fact around these parts.
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Anonymous Coward, 12 Aug 2010 @ 5:16pm

Re:
And the Techdirt masses stay silent
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Anonymous Coward, 12 Aug 2010 @ 5:18pm

"If a law is written so poorly that it is easy to take advantage of it then it is a poor law end of story"

Care to cite a law that can't be abused?
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Anonymous Coward, 12 Aug 2010 @ 5:18pm

Re:
Sorry, meant to reply to Reed
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Anonymous Coward, 12 Aug 2010 @ 5:21pm

> As it does in all of these lawsuits, it's demanding $75,000. The number is carefully chosen, because it's less than what going to court will likely cost. The idea is to just get people to pay up, even if the legal claims are bogus. Beyond the $75,000, it's laughably demanding that the domain name of the site be turned over as well.

That is fail logic. For every one of these sites, the domain name has a value. When added to the $75,000, it might be enough for some of them to make the resulting number more than going to court would cost.
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Anonymous Coward, 12 Aug 2010 @ 5:27pm

Re:
Hence the "easy" word in there, all laws can be abused but only the bad ones can be abused easily can you refute that please.
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Reed, 12 Aug 2010 @ 5:35pm

Re:
"Care to cite a law that can't be abused?"

All laws could theoretically be abused, but if a law lends itself to abuse then it is a poor law.
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Anonymous Coward, 12 Aug 2010 @ 5:39pm

Re:
Yeah, the $75,000 bit is likely thrown in to satisfy the requirement for federal "diversity" jurisdiction. Not needed for a copyright case, but I'd guess that's why it's there.

That, of course, sounds *much* less sinister.
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Anonymous Coward, 12 Aug 2010 @ 5:41pm

Re: Re:
It's always a source of tension: if you write a law (or craft a legal rule) that is black and white, it's application will likely result in injustice because of it's lack of flexibility. If you write a law (or craft a legal rule) that is flexible in its application, nobody can be certain when they are in violation, and it will cost a heck of a lot to go to trial and find out.
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abc gum, 12 Aug 2010 @ 6:38pm

Re: Re: Re:
"I guess your name has to be Masnick to get away with asserting your speculation as fact around these parts."

How ... exactly, does that address the issue at hand ?
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abc gum, 12 Aug 2010 @ 6:40pm

Re: Re:
"And the Techdirt masses stay silent"

wtf does that mean ?
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TtfnJohn (profile), 12 Aug 2010 @ 7:31pm

Re: Re: Re:
I suspect that it means we're agreeing with the sentiment expressed by the AC above the TAM AC.

It's possible someone could go off the deep end. I'd hope not. Nor do I see the remark as attempting to trigger such an event rather than a what if specultation though the prices seem high for Nevada. ;-)

ttfn

John
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BruceLD, 12 Aug 2010 @ 9:43pm

Subject
Sue this ==>. (___(O)___)
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Anonymous Coward, 12 Aug 2010 @ 9:44pm

The term "champerty", which is still a defense in Nevada, comes to mind, albeit this situation is a variant that I term "quasi-champerty". It does not meet the historical, common law definition, but it shares many of the traits.

Based upon some of the complaints I have read, the plaintiff presents meritorious causes of action (i.e., cognizable claims of law). Even so, it does trouble me the manner by which the plaintiff appears to secure standing to present such claims before a federal district court.
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Jay (profile), 12 Aug 2010 @ 11:23pm

Ever heard of Diebold?
This could get really ugly...

Diebold learned the hard way

Cost them $125,000 when it was found out they were abusing the DMCA. Wonder how much it'll cost the LV Times...
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Anonymous Coward, 13 Aug 2010 @ 8:51am

Re: Ever heard of Diebold?
As I understand the article this is not a DMCA issue. It is a straight copyright issue before a FDC.
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Reed, 13 Aug 2010 @ 9:03am

Re: Re: Re: Tension
In my opinion it is the Judge who applies the law who should be flexible not the law itself.

Unfortunately with mandatory minimums we have taken away this important task that Judges preform.
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righthavenvictims, 13 Aug 2010 @ 9:42am

Righthaven Victims
"As I understand the article this is not a DMCA issue. It is a straight copyright issue before a FDC."
It's an ABUSE OF THE DMCA. Righthaven is targeting those who fall under the safe harbor provision, but have not technically complied. This includes forum operators (and/or their larger holders) and also domain name privacy groups! Righthaven rounds out their despicable lawsuits by suing innocent Allegra Wongs from time-to-time.
Learn more about Righthaven victims: http://righthavenvictims.blogspot.com/
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Anonymous Coward, 13 Aug 2010 @ 10:28am

Re: Re: Re: Re:
Which issue is that? I have a mouse and keyboard at my hands.
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Anonymous Coward, 13 Aug 2010 @ 10:30am

Re: Re: Re:
It means that, though this comments section that is often filled with comments regarding the "immorality" of intellectual property law and those who assert intellectual property rights, nobody is batting an eyelash at someone proposing that they wouldn't give a ***** about murder (provided the victim is someone they disagree with about IP law).

I think that show's a very skewed sense of morality prevalent amoung commenters here.
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Anonymous Coward, 13 Aug 2010 @ 10:34am

Re: Re: Re: Re: Tension
Well, it depends on how the law is written. If the law is black and white, the judge can't go write his own law.

With copyright law, Congress has largely deferred to judicial interpretations of what is/isn't allowed, including incorporating those judge-made rules into the statutory text.

However, this leads to a situation where you can't reliably make the call whether XYZ use is an infringement until a judge and/or jury have their say (which may cost you $500,000 or more).
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Mike Masnick (profile), 13 Aug 2010 @ 10:47am

Re: Re: Re: Re:
It means that, though this comments section that is often filled with comments regarding the "immorality" of intellectual property law and those who assert intellectual property rights, nobody is batting an eyelash at someone proposing that they wouldn't give a ***** about murder (provided the victim is someone they disagree with about IP law).

I think that show's a very skewed sense of morality prevalent amoung commenters here.

Oh come on. Because one idiot makes a stupid statement, you assume that everyone here is morally okay with murder?

No offense, but you've gone off the deep end.

It's not that "nobody's batting an eyelash," but that we know some idiot made a totally ridiculous comment anonymously in an internet forum that is so far offbase it's not even worth replying to.

Seriously. Only a really, really twisted mind would turn that into a "skewed sense of morality."

You've been commenting here for a while, and this is a new low. It's really, really, really disgusting to take one comment and assume that people assume that's morally okay.

In the past, sometimes, you have added value in your comments here. Now you've gone into full troll mode. Your law practice must be pretty slow, huh?
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Anonymous Coward, 13 Aug 2010 @ 2:18pm

Re: Re: Re: Re:
Pejorative comments aside, $75K is not a number pulled from thin air. The number corresponds with one of several legal requirements in order for a case to be heard before a federal district court on the basis of "diversity jurisdiction".

Because a $ amount is not a requirement in matters arising under federal law, it was likely included in the complaints merely out of an abundance of caution since the complaints may also contain claims arising under state law.
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Anonymous Coward, 13 Aug 2010 @ 3:57pm

Re: Re: Re: Re: Re:
Exactly, but, based on speculation and a lack of understanding, Masnick conjures up some other nefarious motive and asserts it as fact because it fits a pre-conceived narrative.

I like reading this website (sometimes), but I find this style of writing really irritating.
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Anonymous Coward, 13 Aug 2010 @ 4:02pm

Re: Re: Re: Re: Re:
"Oh come on. Because one idiot makes a stupid statement, you assume that everyone here is morally okay with murder?"

No, that's not what I assume. Rather, I assume people are morally ok with letting comments about murder slide, but not morally ok with letting comments about (Gasp!) assertion of IP rights slide.

I think it shows the tendency of commenters here to jump all over people or statements that appear to promote one "side" of the "IP argument," while letting comments and posters perceived as representing the other "side" stand without any challenge, regardless of the actual merit of the comments at issue.
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Mike Masnick (profile), 13 Aug 2010 @ 4:09pm

Re: Re: Re: Re: Re: Re:
No, that's not what I assume. Rather, I assume people are morally ok with letting comments about murder slide, but not morally ok with letting comments about (Gasp!) assertion of IP rights slide.

I think it shows the tendency of commenters here to jump all over people or statements that appear to promote one "side" of the "IP argument," while letting comments and posters perceived as representing the other "side" stand without any challenge, regardless of the actual merit of the comments at issue.

That's the dumbest thing you may have ever said.

No one is "letting it slide" without a challenge. They just think it's so far out there that it's ridiculous to even bother responding to.

People get into serious debates over IP because that's the topic that we're usually discusisng and it's what people want to discuss. No one cares about discussing some idiot advocating murder. Reading more into it than that is wishful thinking.
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Anonymous Coward, 13 Aug 2010 @ 4:10pm

Re: Re: Re: Re: Re: Re:
Also, I'll note that two people made essentially the same comment (although one seemed more obviously tongue in cheek).
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Anonymous Coward, 13 Aug 2010 @ 4:15pm

Re: Re: Re: Re: Re: Re: Re:
Well, I disagree, and I don't think my disagreement is the dumbest thing I've ever said (although, I've got a lot more access to the dumb statements I've said in my life than you do).

I think the fact that someone supporting a radical anti-IP position (kill IP lawyers) get's no criticism whatsoever, while anyone asserting even a mild and limitd pro-IP stance is near-guaranteed to get resistance, does reveal general tolerance of meritless positions as long as they are in the anti-IP camp.

Also, on another note, when I comment on your articles or posts, I'm generally a critic of yours. However, I do find some of your articles interesting and useful, and I suspect if we were ever to meet in person, we would probably get along just fine.
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Mike Masnick (profile), 13 Aug 2010 @ 4:19pm

Re: Re: Re: Re: Re: Re: Re: Re:
I think the fact that someone supporting a radical anti-IP position (kill IP lawyers) get's no criticism whatsoever, while anyone asserting even a mild and limitd pro-IP stance is near-guaranteed to get resistance, does reveal general tolerance of meritless positions as long as they are in the anti-IP camp.

Again, it's because no one thinks it's serious or worth responding to.

You get into a discussion with your friend who is of a different political persuasion about who should be President because you know it's a serious discussion. You don't discuss it with the homeless guy who thinks Mickey Mouse should be president because that's just ridiculous.
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