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| The Righthaven Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him | ||
| 2012-04-25 | ||
| Really long piece, much more at the link. Excerpted according to Fair Use doctrine. But Robert Levine, author of Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back, says he believes that Righthaven messed up "a lot of stuff, including the basic idea of giving small players a mechanism to enforce their rights." What are perceived as Righthaven's failings can be put into two categories: a disregard for the notion of fair use and its own lack of standing. Fair use is the legal doctrine that holds that people should be permitted to make use of copyrighted material so long as they limit themselves to using only what is necessary to their message. Even copyright holders believe that this kind of sampling adds to the progress of culture or our understanding of society without harming the market for their work. Indeed, Righthaven seemed to have been caught off guard when judges wouldn't fault bloggers for reposting photographs or quoting articles. In one of the most famous Righthaven cases, a federal judge found that Vietnam veteran Wayne Hoehn, who had posted all 19 paragraphs of a Las Vegas Review-Journal editorial, was within his fair use right to do so. The issue is one of the main reasons why Randazza decided to take on the company. "It irritated me that the company filed all those cases without any regard to fair use," he says. Righthaven's inability to anticipate and prevail on these fair use challenges has alarmed some trade groups in the content industry, including the RIAA and the Association of American Publishers, which filed an amicus brief last December at the 9th U.S. Circuit Court of Appeals at San Francisco in the Hoehn case. They argued that Righthaven lacked standing to pursue its copyright claims and shouldn't be allowed to usher in "sweeping fair use pronouncements" that would imperil real copyright owners. That leads to Righthaven's second failing, which doesn't get quite so under the skin of its critics but is equally significant. The idea that Righthaven lacked standing derives from successful challenges at the district court level to the way it was assigned copyrights by its media partners in the first place. One judge ruled that only plaintiffs who have actual control over copyrights can sue. Righthaven was merely given the right to sue in its "strategic alliance agreement" with Stephens Media, and the judge said that wasn't enough. No topic arouses more anger from Gibson than this particular decision. He thinks it was a flawed one, emanating from a judge who was influenced by "personally vicious, unfounded, disreputable attacks" on Righthaven. Poor baby. A judge sympathizing with the little guy, no wonder he hated it. Critics like Dunlap aren't so sure. "If Righthaven had filed [its cases] in the name of the rights-holder like Stephens Media, then I don't think their cases would have been dismissed," he says. "I'm not sure why they didn't." Gibson could have easily represented Stephens Media as its outside counsel. Instead, he chose to step outside the lawyer's typical role and create a shell company whose sole purpose was to sue. Why? Money, plus the frisson of pleasure from forcing little people to submit. Lawyers dig that.
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| Posted by:gromky |
| #2 There's a dishonest debate going on with publishers. Copyright is intended to protect a work, not the capital amassed to distribute that work. Copyright law means as a whole the ability of others to take someone's work and build on it, not copy it as their own, but to add their own unique version to it. Publishers have had such a tremendous advantage literally for hundreds of years a cultural gate keepers that they think that that privileged position gives the more rights than anyone else when it comes to fair use. Lawyers like Righthaven told publishers, we have a solution: we'll just sue the living sh*t out of everyone, and everything will be okay. Even if Righthaven had won all their suits and was still in business, they won't be able to stop anything because the Internet levels the playing field and makes entry into journalism for pennies of the dollars. Publishers are so large, so ponderous in their business model they are failing to see their business model is bleeding them dry, not bloggers, and there is nothing they can do about it. Publishers are in a hail storm. They can't hide and they can't make it stop. Suing may reduce the amount of fair use going on for a while, but genuine fair use will not stop, ever. And that is a good thing. |
| Posted by: badanov 2012-04-25 16:57 |
| #1 Gibson could have easily represented Stephens Media as its outside counsel. Instead, he chose to step outside the lawyer's typical role and create a shell company whose sole purpose was to sue. Why? New business model; a low cost,limited liability corporation contracting out its legal and business operations. There was an entire nation available. Just contract the work to a young and hungry lawyer who could practice in the state the target was in. It'd be like anchovy fishing. The targets, though small fish, wouldn't have the expertise, experience, or the assets to fight back and would settle. And there'd be a lot of them. Newspaper firms would have jumped on board because they had the targets, it saved them from hiring their own lawyers and they got some cash besides. Had it been successful, the Stephens family would've raked the money in. Problems were that it was an end-run around the intellectual-property law industry, who noticed, and they went after the left end of the political spectrum, who had organizational ability and legal chops who would work pro bono for a 'cause'. |
| Posted by: Pappy 2012-04-25 09:43 |