The expression "bad facts make bad law" comes to mind when reading the news reports about Righthaven LLC and the Las Vegas Review-Journal ("Las Vegas Review"). Namely, the Las Vegas Review has partnered with Righthaven to sell their copyright interest in articles after the articles in whole or part are attached as hyperlinks to blogs. Righthaven registers the copyrights it purportedly acquires from the Las Vegas Review and then sues the blogs without sending the standard "cease and desist" letter beforehand.
The facts sound pretty egregious, and this litigation business model is being criticized. Since March 2010, Righthaven has filed over one 140 actions. In these actions, Righthaven seeks damages, attorneys’ fees, and demands forfeiture of the blog site’s domain – relief that is appropriate perhaps in cybersquatting cases, but not actions for alleged copyright infringement. Most of the cases settle quickly with roughly 20% reportedly settling for several thousands of dollars.
And, Righthaven has indicated that it will add more newspapers to its list of clients. Stephens Media LLC, the publisher of the Las Vegas Review, runs over 70 other newspapers in nine other states. The CEO of Righthaven is reported as saying that he has an agreement with Stephens Media to sue bloggers who hyperlink to articles in these other newspapers as well.
Because of these "bad facts" (suing without the customary "cease and desist" letter, and filing so many actions in a relatively short period of time), originators of news stories may see an erosion of their copyright protections. Namely, courts may start finding that hyperlinks to news articles are a fair use under Section 107 of the Copyright Act, or are permissible pursuant to an express or implied license. News articles are widely distributed with the originator newspaper providing an online share feature. It is possible to imagine a situation where one person posting the article on her Facebook page that has 250 friends (the rough average number of a Facebook user) is the catalyst of the article going viral and being shared exponentially into a far greater circulation than the blogger who used a hyperlink to the article.
While many people do not appreciate how Righthaven is going about enforcing the Copyright Act, Righthaven is addressing a real problem for newspapers and other reporting media. Namely, the originators of news stories have put considerable money into having on staff reporters who investigate and write the stories, editors, copy writers and other infrastructure necessary to putting out a newspaper. These publications are facing reduced revenues due to a notable decrease in paid subscribers and advertising. The newspapers have tried different vehicles to remain profitable including online advertising, and allowing sharing of a news story with the hope that it will bring more traffic back to the newspaper for other articles as well. And, yet, through the use of hyperlinks, bloggers can essentially republish these news stories without investing any costs while generating considerable money through paid advertising on their blogs.
It is settled law that the originators of these news stories are entitled to copyright protection. However, the Copyright Act does allow for copyrighted material to be used in some instances without having to obtain permission from the copyright holder. And, Righthaven is now facing legal challenges in court based on these exceptions.
A blog site, Democratic Underground, is defending against a lawsuit filed by Righthaven with assistance from the Electronic Frontier Foundation ("EFF"). "Democratic Underground is the largest independent discussion forum for liberals on the Internet. Thousands of people discuss and debate political issues on our site every day, particularly now during election season. Online discussion often requires quoting from news sources — a legal fair use of the material," said Democratic Underground founder David Allen. "By targeting short excerpts of news articles with their sham copyright claims, Righthaven is chilling free and open discussion on the Internet."
EFF was apparently looking for the right set of facts to challenge Righthaven’s litigation business model. Righthaven sued Democratic Underground for a five sentence excerpt of a Las Vegas Review news story that a user posted on the forum with a link back to the Las Vegas Review website.
In its answer and counterclaim filed on September 27, 2010, Democratic Underground asks the court to affirm that the excerpt of the article does not infringe copyright and is a fair use of the material. The counterclaim also asserts that Las Vegas Review has granted a "License (Express and Implied), Consent, Waiver, and Acquiescence" through the numerous ways in which the Las Vegas Review allows its articles to be shared, including a "Share & Save" feature on its website: "Share & Save allows you to bookmark news articles for future reference and share news articles with friends and web-based communities like digg and MySpace."
Democratic Underground also states in its counterclaims that the Las Vegas Review website offers and invites its users to share all of its articles through social media third parties including "Newsvine, Digg, Technorati, Reddit, StumbleUpon, Del.ico.us, Slashdot, Propeller, Mixx, Furl, Twitter, Myspace, Facebook, Google bookmark, Yahoo! bookmark, Microsoft Live favorites, Ask bookmark, and myAOL favorites."
The fair use defense allows for citing from the original work, if the purpose for using the copyrighted work is for the purpose of fair and reasonable criticism. Some examples of fair use in the preamble to Section 107 include: "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Federal courts usually decide fair use issues by considering the four listed (but not exclusive) factors in Section 107:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for profit 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.
The fourth factor is generally considered to be the most important of the four factors. This is because copyright law is designed to provide an economic incentive for new creative works. A secondary use that threatens this incentive is less likely to be considered a fair use. Thus, in the context of blogs and hyperlinks to news stories, courts are likely to look at whether the blog supplants the market for the original, and the extent to which newspapers through reduced ad revenues and increased traffic to bloggers are being replaced by the blogs. In other words, decreasing the incentive for newspapers to invest money to gather and report the news of the day to the detriment of public discourse.
The Democratic Underground case will be closely followed, and is likely the precursor to more legal challenges.
In conclusion, whether or not a blogger decides to link to news stories from other sites, the blogger should factor into his decision the current wave of lawsuits coupled with the uncertainty of the legal outcome. And, if a blogger is sued for copyright infringement, the blogger should consult with knowledgeable legal counsel since there are a number of defenses worth arguing.
This article was originally posted on Sheppard Mullin’s Social Media Law Update blog, which can be found at www.socialmedialawupdate.com
For further information, please contact Michelle Sherman at (213) 617-5405. (Follow me on Twitter!)