Harvard project spreading the news about Righthaven

An agency at Harvard University wants judges, attorneys and Internet publishers everywhere to know about the profound implications of the Righthaven LLC newspaper copyright infringement lawsuits.

Righthaven is the Las Vegas company that since March 2010 has filed 274 lawsuits claiming material from the Las Vegas Review-Journal and the Denver Post was displayed elsewhere online without authorization.

Righthaven says the no-warning lawsuits are attacking rampant online infringements of news material, but critics say Righthaven is merely running a shakedown operation designed to extract quick and small settlements from defendants.

After U.S. District Court Judge Philip Pro in Las Vegas dealt Righthaven its latest loss on fair use grounds, Harvard’s Citizen Media Law Project on June 27 sent Pro a letter asking him to "publish" his order.

That’s legal shorthand asking that the judge’s decision be submitted to nationwide publishers of bound volumes of legal decisions.

Many Righthaven court decisions are routinely reported electronically by services such as Westlaw, Justia.com and LexisNexis.

The publication of Pro’s decision on Righthaven in bound volumes would give the ruling more authority for citation as precedent in existing and future copyright cases, said David Ardia, director of the Harvard center.

Publication of the ruling in the print format would also make it more widely available, as bound volumes are shipped to law libraries open to the public nationwide, Ardia added.

"As I am sure you know, Righthaven LLC is involved in a number of other copyright infringement cases in Nevada and Colorado and its litigation tactics have been the subject of considerable public scrutiny," Ardia wrote in his letter. "Given the intense public interest in these cases and the importance of your decision, I believe it would benefit the public and the bar if your June 20 order were published."

Pro hasn’t indicated if he’ll do anything in response to the letter and Righthaven — which has its own attorney associated with Harvard — has not responded to the letter.

In his June 20 order, Pro became the second Nevada federal judge to rule Righthaven did not have standing to sue over Las Vegas Review-Journal material.

Copyright case law requires plaintiffs in infringement lawsuits to have exclusive control of copyrights, but Review-Journal owner Stephens Media LLC remained in control of the copyright at issue despite purportedly transferring it to Righthaven, Pro found.

Perhaps just as significantly, Pro found that the defendant in the case, Kentucky message-board poster Wayne Hoehn, was protected by the fair use doctrine of copyright law when he posted an entire R-J column on a sports betting website’s message board.

This fair use ruling against Righthaven was similar to two previous fair use rulings against Righthaven in that the judge found there was no evidence that Hoehn’s use of the column affected the market for the column.

Pro’s ruling was controversial, though, because it involved an opinion piece. The previous two fair use rulings involved R-J news stories — one partially copied on a commercial website and the other fully copied on a nonprofit website.

In Pro’s decision, the column was an opinion piece by former R-J Publisher Sherman Frederick.

Pro found that just five paragraphs of the 19-paragraph piece were purely creative. The other paragraphs were factual or had a mix of factual and creative elements. Overall, it wasn’t a purely "creative work" within the core of intended copyright protection, Pro found.

Pro and Judge James Mahan, in a previous fair use ruling against Righthaven, rejected Righthaven’s arguments that under previous case law, the defendants weren’t protected by fair use.

That’s why their rulings, and one by Judge Larry Hicks in Reno last year, are creating new precedent in copyright law. Righthaven has appealed the fair use rulings by Hicks and Mahan. It has suggested it will appeal Pro’s ruling in the Hoehn case, but has yet to do so.

This and other Righthaven decisions are creating case law with wide ramifications for not just the news industry, but for individual citizen journalists such as bloggers, Ardia said in an interview.

The Citizen Media Law Project offers legal information and referrals for journalists and online publishers.

Part of Harvard’s Berkman Center for Internet & Society engaging on cyberspace issues, the Citizen Media Law Project has referred some Righthaven defendants — including citizen journalists and commentators — to attorneys willing to work for free or at reduced rates through its Online Media Legal Network.

And Righthaven lawsuits regularly show up on the Citizen Media Law Project’s database of "legal threats directed at those who engage in online speech."

Ardia, however, said that as an information provider, the Harvard center isn’t taking sides in the Righthaven lawsuits. That’s in stark contrast to Righthaven critic the Electronic Frontier Foundation in San Francisco, which has teamed up with several affiliated law firms and attorneys to litigate against Righthaven.

Nevertheless, Ardia said the Citizen Media Law Project is concerned the Righthaven lawsuits are eroding the ability of both newspapers and citizen journalists to protect their content online.

Since the Righthaven lawsuits seem to be backfiring and reducing copyright protection for content producers, Ardia said it’s not surprising Righthaven hasn’t signed up more newspapers as lawsuit partners.

"There’s a sort of ambivalence. They’re (newspapers) not sure whether it’s in their best interests to push these types of lawsuits," Ardia said.

The Citizen Media Law Project has been funded by the John S. and James L. Knight Foundation, which was created by the family behind the Knight Newspapers Inc. chain. The Knight organization later became part of Knight-Ridder Inc., for a time the largest newspaper company in the country with some of the nation’s most-respected newspapers including the Philadelphia Inquirer.

MediaNews Group Inc., a Righthaven client, now owns some of the biggest former Knight-Ridder papers: The San Jose Mercury News and the St. Paul Pioneer Press in Minnesota.

The Citizen Media Law Project isn’t the only Harvard connection to Righthaven.

After his company was threatened with sanctions for failing to disclose Stephens Media’s interest in the copyright lawsuits, Righthaven CEO Stephens Media suggested this was, in part, guidance for future cases.

"I think part of what’s happening here is that the federal judges recognize that Righthaven has hired some of the top lawyers across the country. Copyright lawyers. Harvard law professors. And they understand that we’re affiliated with an organization as reputable as Stephens Media," Gibson told Ralston.

"I think what the judges are saying is ‘listen, folks, Righthaven is filing a lot of lawsuits.’ They understand that we’re potentially genuine with respect to upholding copyrights. They don’t want to see Righthaven competitors potentially come on with not-solid documentation, and they’re giving us guidance as to what the documentation should be," Gibson said June 22 on "Face to Face with Jon Ralston."

Gibson’s Harvard reference apparently was to Righthaven’s star outside attorney Dale Cendali. She’s a partner at the law firm Kirkland & Ellis LLP in New York and an adjunct professor at Harvard teaching copyright and trademark law.

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