Righthaven ‘chilling effect’ prompts nonprofit to adjust
20 June 2011
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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