We now come upon a company called Righthaven, LLC.
Righthaven came to light a while back by suing a couple of bloggers in federal court who "reposted" stories from a publication called the Las Vegas-Review Journal (LVRJ). In both cases the reposts contained some or all of the original LVRJ story with credit. One blogger was Mary J. Santilli of Boston and an "American Idol" fanatic posted a full LVRJ story on her blog with credit. Another was Allegra Wong, also of Boston, who wrote a story from her cat's perspective about a fire that killed some birds - again providing credit but only using a portion of the story.
Since then Righthaven has filed additional federal lawsuits in about 100 or so cases. Typically the cases ask for "damages of $75,000 and forfeiture of website names" according to the Las Vegas Sun.
So let's see, 100 x $75,000.00 US = $7,500,000.00 USD.
The suing proceeded until Righthaven came across Reality One Group, Inc. Group One fought back and won based on this decision. The decision reads in part: "The Fair Use doctrine states in pertinent part that “the fair use of a copyrighted work, . . . for purposes such as criticism, comment, [or] news reporting . . . is not an infringement of copyright.” 17 U.S.C. § 107. In determining if an alleged infringement is a fair use of the copyright, district courts consider several factors including: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for 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. 17 U.S.C. § 107; see also A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). "
The judge goes on to discuss this indicating that while Group One may be a commercial entity using LVRJ's content it meets the "Fair Use" exception to copyright law because A) the use is factual new reporting and commentary, B) Group One use only eight of thirty sentences in an article (about 26%), and C) the use does not dilute the original copyright holders (LVRJ) market. For me this decision is dead on with standard "Fair Use" doctrine (link here).
Another judge, Robert Johnston, has questioned Righthaven's court costs related to these suits. Righthaven, for example, demands costs in these suits and its in-house counsel charges $160 - $190 USD per hour.
All this said we have to now step back somewhat and view this from a different perspective.
While its clear that posting an entire article from a publication like LVRJ would be infringement what's not so clear is the legality of the process that LVRJ has constructed with Righthaven to attack supposed infringement.
Under the Digital Millennium Copyright Act (DMCA) a blog host, such as blogspot in the case of this blog, should register a "takedown agent". A "takedown agent" is a person who is to be notified if infringing material appears on the site. If you do not have such a person registered the actions of an entity like Righthaven can be more problematic. Under the DMCA if a blog has a registered takedown agent Righthaven must notify the agent of any infringement. The agent must then take steps to "take down" the infringing material.
In the case of Google, typically this means simply removing the material, though there are a lot of complex legal elements related to this (see this). A more complete discussion of your rights relative to "online-freedom" can be found here.
In defense of another Righthaven target the Electronic Freedom Foundation (EFF) has filed a counter suit against Righthaven alleging that it is a "Copyright Troll" that seeks to extract “... windfall recoveries of statutory damages and to exact nuisance settlements” from its targets.
So what's the bottom line to all this?
Clearly in a case like "Cooks Source" copying an entire article into your blog or publication without permission is wrong.
Its also clear that trolling for cases like this with the intended purpose of extracting "nuisance settlements" is also wrong. (It will be interesting to follow this counter claim - my guess is that the US legal system will ultimately reject the notion of nuisance claims for a number of reasons).
The real losers here are you and I (unless you're a lawyer).
The creation and filing of nuisance lawsuits is an all too common practice of which I myself have been a victim over the years. What these articles don't say is that any defense, no matter how simple, is likely to cost tens of thousands of dollars in addition to whatever claim is made against you (unless the EFF comes to your rescue).
I think the US legal system includes the implicit presumption that the filer of claims like Righthaven's have substantial merit - they wouldn't have sued if they didn't, right? This bias comes from a history of law developed over several hundred years before the electronic age. You and I did not file claims like this except in exceptional circumstances - and most publishers (like newspapers) respected copyright and the law - lawsuits were the realm of big business who could afford them.
Today, however, the mere threat of a lawsuit is substantial - far beyond the resources of most individuals or small businesses.
And this argument goes to both sides: In the case of Cooks Source I mentioned at the beginning of the article the original author could have filed a federal lawsuit against Cooks Source claiming infringement. However, this would also have cost tens of thousands of dollars - regardless of any success or failure.
The "takedown" portion of the DMCA is a step in the right direction - but it doesn't go far enough.
There needs to be a simple, straightforward legal mechanism to handle the first level of these types of claims without need of lawsuits, lawyers and judges. This would allow you and I to handle issues that arise without the involvement of legal trolls looking to benefit from the hard work of others.
The bottom line is this:
In the case of Cooks Source using the "Tale of Two Tarts" article without the permission of Monica Gaudio wouldn't it be better to have this resolved through a simple legal means, e.g., arbitration or the like, rather than have a legal trolls collecingt tens of thousands of dollars from both sides?
Its wrong to steal copyrighted materials - but I think its just as wrong to profit beyond the original value and scope of the material.
My guess is that the "Tale of Two Tarts" did not generate nearly enough money for Monica Gaudio to pay for a federal lawsuit against Cooks Source.
Damages and costs should be limited to the real value of the materials and harm in question.
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