Righthaven ‘chilling effect’ prompts nonprofit to adjust

Depending on one’s point of view, Las Vegas copyright enforcer Righthaven LLC has either succeeded in deterring infringements of newspaper industry content — or its no-warning lawsuits have unfairly spread fear throughout the Internet.

In talking to Sharon Sanders, both of those viewpoints are validated.

In dismissing a Righthaven copyright infringement lawsuit on fair use grounds in April, a federal judge in Las Vegas found Righthaven’s litigation strategy — now involving 274 lawsuits — “has a chilling effect” on the fair use by others of content Righthaven claims to own.

Sanders, who runs a nonprofit health-information website, says the chilling effect of Righthaven’s lawsuits extended far beyond content from Righthaven’s lawsuit partners, the Las Vegas Review-Journal and the Denver Post.

Sanders says that chilling effect is continuing — even with U.S. District Judge James Mahan’s fair use ruling in favor of an Oregon nonprofit that was sued over a Review-Journal story and Judge Roger Hunt’s ruling last week that Righthaven didn’t have standing to file suits over Review-Journal material.

Sanders is president and editor of FluTrackers.com Inc., in Winter Park, Fla., which serves Internet users worldwide. That nonprofit website since 2006 has posted some 336,000 reports on the flu and other diseases — reports including full or partial stories from newspapers and other media sources around the world, as well as government reports.

Sanders has no health care background, having worked in business and real estate. The website was started by she and other concerned citizens because at the time there was no central online repository of such information and the U.S. government was expressing great concern about the potential for a flu pandemic, she said.

Over the years the organization regularly posted news stories — crediting the sources and linking to them — and, for the most part, heard no objections from newspapers and news services, she said. In fact, many newspapers recognized these were public service stories and were happy to let FluTrackers.com use them because of its public service mission, Sanders said.

A handful of newspapers during this time contacted the organization and expressed concern that too much of their information was being used. FluTrackers.com immediately reduced these posts to “snips” and links, she said.

Then along came Righthaven, which started filing no-warning lawsuits in March 2010 against corporate and nonprofit website owners, as well as individuals and message-board posters.

“I almost fell out of my chair” upon learning of Righthaven last summer, Sanders said, explaining the nonprofit and the individuals behind it were terrified of getting sued.

“It’s really intimidating. It’s not like small claims court,” she said of the Righthaven lawsuits, which typically demand $150,000 in damages, forfeiture of defendants’ website domain names and computers and recovery of Righthaven’s attorney’s fees.

(Many defendants have settled in the four-figure range. Hunt has ruled Righthaven can’t demand seizure of domain names and he’s said there’s merit in arguments Righthaven can’t demand attorney’s fees for suits filed by in-house counsel).

Sanders and FluTrackers.com haven’t been sued by Righthaven — it turns out the site had not posted any material from Righthaven’s partners.

Nevertheless, because of Righthaven, Sanders and contributors put the brakes on posting news stories — even basic press-release rewrites announcing flu-shot clinics that likely would be protected by fair use.

That meant vital health information, which used to receive 120,000 hits per year, was for the most part no longer posted.

“It had a real crushing effect on what we’re doing,” Sanders said, explaining the posting of news stories and items has slowed to a trickle.

The group was fearful that Righthaven, which was marketing its services to the newspaper industry last year, would sign up a client that could claim its material was misappropriated by FluTrackers.com.

“They were trying to sell this to everyone. The Denver Post — he’s connected to The AP,” she said of William Dean Singleton, publisher of the Post who is also chairman of the board of directors of the Associated Press.

And Sanders had good reason to worry as Righthaven had sued a handful of hobby and nonprofit health-related websites. Among them: New Hampshire-based EMTCity.com covering the emergency medical technician field, the Trauma Intervention Program of Southern Nevada, the Hepatitis C Support Project of San Francisco; and Fremont, Neb., group Honor Inc., which educates medical professionals about the One & Only Campaign, promoting “One Syringe Only One Time” to prevent the spread of diseases among patients.

While worrying about a Righthaven lawsuit last year, Sanders said she recognized most newspaper editors and managers wouldn’t hit her nonprofit with a no-warning lawsuit.

“We’re a volunteer organization. We don’t want trouble from anybody. And most people are kind hearted and would not go after us,” she said.

Still, she worked to protect FluTrackers.com by posting a “DMCA notice.” As authorized by the Digital Millennium Copyright Act, websites can register with the U.S. Copyright Office and post a notice for the receipt of copyright infringement complaints. This somewhat insulates websites from lawsuits — but only for material posted by third parties. Information posted by website owners and operators is not protected by the DMCA notices.

Sanders said she also enlisted the help of the Citizen Media Law Project at Harvard University, which she said promised to help her group if it was sued by Righthaven.

While acknowledging Righthaven has helped spread awareness of the rules for re-posting content from newspapers and other news generators, Sanders says Mahan’s fair use ruling in the case of the nonprofit Center for Intercultural Organizing in Portland, Ore., has validated her nonprofit’s online activities over the years.

“That has put everything we’ve done in the ‘OK’ column,” Sanders said.

Still, with Righthaven appealing that ruling and an earlier fair use loss, and copyright case law still unsettled, Sanders said it will take some time before her group is comfortable with posting newspaper content on a wide scale again.

“We’ll never put anything up from Stephens Media,” she said of the owner of the Review-Journal.

Sanders’ story is similar to that of Colleen Lynn, who regularly posted stories about vicious dog attacks on her nonprofit website but then had to worry about a Righthaven lawsuit.

Lynn was so upset about Righthaven she started the Righthaven Victims website, which provides news, commentary and resources for Righthaven defendants.

As for Righthaven and Stephens Media, they’ve repeatedly said the no-warning lawsuits are necessary to crack down on rampant infringement of newspaper content. While critics complaint about the no-warning nature of the suits, Righthaven points out in the suits that alleged infringers didn’t bother calling or emailing the Review-Journal or the Denver Post to seek permission before using their content.

Though takedown notices or requests are used by most newspapers when they become aware of infringements, Righthaven CEO Steven Gibson says they are ineffective.

And Stephens Media attorneys have said the Righthaven lawsuits are dealing with a "parasitic business model" in which newspaper content is regularly stolen and used by news aggregators.

Righthaven doesn’t sue director competitors for advertising dollars of the Review-Journal and the Denver Post — local TV stations and the Las Vegas Sun, for instance.

Nor does it sue the biggest news aggregators like Google, Yahoo, MSN, Bing and AOL; or the busiest sites including Facebook and YouTube.

In fact, just two websites sued by Righthaven appear in the Alexa.com list of the 500 most-visited websites in the United States. Those are BuzzFeed and the Drudge Report — both sued over a Denver Post TSA pat-down photo.

Instead of suing heavily-trafficked sites, Righthaven lawsuits typically target special-interest websites like those run by the Democratic Underground and Dana Eiser’s Tea Party group in South Carolina, both of which responded with counterclaims and/or lawsuits against Righthaven, Stephens Media and the Denver Post.

Wall Street analysts, in the meantime, have not identified the types of infringements Righthaven sues over as affecting newspaper revenue one way or another — keeping in mind that many of these sites actually drive traffic to the source newspaper.

In their “parasitic business model” filing last month, attorneys for Righthaven wrote: “It is widely known that traditional media sources, including newspapers, face a myriad of challenges that threaten their survival in the digital era. Indeed, news stories and websites chronicling the imminent death of the American newspaper abound. Whether this doomsday scenario applies to a given newspaper is, of course, fact specific but there can be no dispute that all newspapers face increasing competition from countless websites on the Internet.”

Yet the 2010 annual reports of two of the nation’s largest newspaper companies, Gannett Co. Inc. and The New York Times Co., make no mention of such a “parisitic” or even infringing business model having affected their revenue.

The only mention of potential infringements by the The New York Times Co. was this warning: “Unauthorized parties may attempt to copy or otherwise obtain and use our content, services, technology and other intellectual property, and we cannot be certain that the steps we have taken to protect our proprietary rights will prevent any misappropriation or confusion among consumers and merchants, or unauthorized use of these rights.”

“If we are unable to procure, protect and enforce our intellectual property rights, we may not realize the full value of these assets, and our business may suffer. If we must litigate in the United States or elsewhere to enforce our intellectual property rights or determine the validity and scope of the proprietary rights of others, such litigation may be costly and divert the attention of our management,” the warning said.

Gannett said in its report that its local newspaper websites saw growth in 2010 of 11 percent in page views and 14 percent in visitors.

As for competition, Gannett said: “Web sites which compete for the principal traditional classified advertising revenue streams such as real estate, employment and automotive had the most significant impact on the company’s revenue results.”

The newspaper industry is still dominated by print advertising revenue and its big problem, according to a 2010 report by Moody’s Investors Service, is that “the erosion of newspapers’ readership share and pricing power continues unabated as readers embrace free and low-cost content on the web and mobile devices.”

Much of that free content is provided by newspapers themselves, along with their traditional radio and TV station competitors.

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  1. Sgt Rock

    Oh you mean like your friend Sherman Frederick who's latest column
    "Content protection -- Night of the unthinking commentator" featured substantial portions of words lifted from the blog gametimeIP.com?

    Frederick cut and pasted portions of three posts from that blog and there is no indication Frederick got permission from gametimeIP.com. Sherman also gave no atribution to the blog owner except for a link and did not even enclose the portions he lifted in quotes leading the reader to possibly think those are Frederick's words and not from gametimeIP.

    Frederick may very well be within fair use but any cut and pasting on his part is extremely hypocritical because he has called many who have done the same to be "content thieves" and would, given his way, not allow a single word to be copied and fair use be damned.

    Sgt Rock, I fully expect you to defend Frederick's actions and justify what he has done but to do so will also put you squarely in the hypocrite column since you too have called people thieves for doing what Frederick has done.

    Justify away.

  2. Sgt Rock

    Look at the column Rock he has three instances where he links to posts from gametimeip and then posts portions of the contents of those posts. Just look at the column.

    http://www.lvrj.com/blogs/sherm/Content_...

  3. Sgt Rock

    Click on this google search and it will give you a good example and prove my point. The search gives you both the gametimeIP post and Fredericks post and you will see he lifted the portions word for word.

    http://www.google.com/#sclient=psy&h...

  4. Her is another example...

    http://www.google.com/#sclient=psy&h...

  5. Lets all face it until the courts and a federal judge slap the RJ and Righthaven aka Wronghaven with strong fines and penalties they will do what they want when they want. As long as they can do business as usual they don't care. My girlfriend and I recently had family in town and they wanted to buy a newspaper to see what was going on and I told them that the RJ was not allowed in my house even to line the cat box.

    And like so many people that run blogs and forums I am afraid to use even a small portion of any article from the RJ, a.k.a. "fair use" because I worry that Wronghaven slim will slap me with a lawsuit.

    I recently had a member of my forum post a partial article by the RJ and I took the article down in less than five hours, as soon as I saw it. I also have been posting Las Vegas Sun articles on my forum but I have been giving them full credit and link back to them in no less than two locations on the article. I also at one time contacted the RJ about getting permission to use some of their pictures on my forum and I have never heard one word from them.

  6. Dave Butcher

    Apparently only former RJ editors are allowed to post portions of other people's content.

    I too would not even use the RJ to line a bird-cage, I mourn for the trees that are used to print it.

  7. StgRock

    I am glad you at least admitted that he did not cite the sources correctly and as I mentioned myself I would say Frederick is within fair use but it is still hypocritical for him to be doing any cut and pasting while at the same time calling others thieves.

    I agree myself that cutting and pasting an entire article should not be done because you can get the important part of a story in just a short snippet but many do not believe in fair use at all or have it so narrowly defined as to render it meaningless.

  8. StRock

    Sherman Frederick violated Stephens Media's own terms of service on this article by not properly citing the source of the articles he mentions from gametimeIP.com.

    Stephens Media TOS states:

    "Stephens Media welcomes hypertext links to its electronically-published textual content. The appropriate method for linking to Stephens Media content is to post only the headline and the first paragraph of a story and then a link to the original textual material."

    This was some sloppy journalism by Sherman Frederick. No wonder he is no longer editor.

  9. This brings up an important issue that has been only been mentioned a few times so far in all the thousands of comments that have been made: Stephens Media would like to define "fair use" in their terms and have courts bound to it.

    There is no hard and fast rule on how much can be used, or even where it can be taken from. For example, here is what the Sun says in its TOS: "Text from our stories can be quoted when linking to our content, but it must not be more than one-tenth of the total word count of the story or 100 words, whichever is lesser."

    Stephens Media says only the first paragraph may be quoted, the Sun doesn't place that restriction on use, but rather limits the quantity.

    Neither of those limitations are given in Title 17 itself. In fact, Title 17 provides for photocopying an entitle article for use in a face to face educational setting.

    Title 17 very much depends upon common sense determinations by the court. I believe that Judge Mahan erred when he ruled the Oregon case was fair use. He might have been thinking of the provision for education use, but failed to take into account the "face to face" qualification in the clause. Mahan appeared to be more interested in slapping Righthaven down but didn't have enough information to do so other than a "fair use" ruling. It was a bad decision, in mt opinion.

    On the other hand, Democratic Underground appears to fall easily within the spirit of the guidelines in Title 17 for "fair use" but goes beyond the limits given by SM. Title 17 does not provide for authors to set hard and fast limits, but Righthaven has gone after several cases like DU. At that point the tactics used by RH carry more weight than they would otherwise.

  10. Botx

    Fair use mainly deals with what can be done with copyrighted works without permission so any TOS is irrelevant to fair use because, by definition, terms of service is a type of permission.

  11. Ken and SgtRock have just stated both sides of the argument at the core of "fair use": who gets to set the guidelines?

    Ken's argument is somewhat more persuasive, but the point brought up by SgtRock is more practical. It really is easier for many people to settle rather than fight a lawsuit, even if they have the resources to do so.

    Overall, I think Righthaven did a great disservice to all copyright owners in that the bench has been so offended.

  12. Sgt Rock

    I don't think they are ignoring copyright infringement but rather see the benefit of people linking to them and not alienating their customers and advertisers. I don't think the vast majority of newspapers care if people take some of the content as long as they link back.

    When a small time newspaper can command a worldwide audience because of other blogs and sites link to them, create a buzz and go viral and become part of a worldwide discussion is not viewed as a bad thing.

    I think there are newspapers listening to their SEO and marketing people and others like the LVRJ who are only listening to their lawyers.

  13. "The higher courts will take a more mature view of these rulings." - SgtRock

    The higher courts will put Righthaven under a microscope and not even reach the question of "fair use" now that the SSA with Stephens Media has been disclosed in all its glory. The question of standing has tainted all of the cases involving material from Stephens Media, and if the agreement with MediaNews is similar, then those cases are tainted as well.

  14. I actually see a time coming because of all this frivolous litigation, most people getting their news not from the Sun or other newspapers, but independent "commentators" or bloggers. Jaun thinks newspapers maybe shooting their self's in the foot on this one !

  15. RIghthaven, the best defender of fair use ever.