Lawsuits allege copyright violations in posting of newspaper's articles on Web sites

By Amanda Becker
Monday, September 13, 2010

An area public affairs shop, a D.C.-based coalition against the taxation of flavored beverages, a former government prosecutor and a nonprofit that promotes government responsibility have all found themselves the target of copyright lawsuits recently brought by a Las Vegas firm that has purchased the rights to articles from a local newspaper there.

Goddard Claussen Public Affairs and Americans Against Food Taxes were named defendants in copyright infringement lawsuits filed last week by Righthaven, a limited liability company headquartered in the desert city.

Since March, the company has brought at least 126 such suits against individuals and entities that have republished articles from the Las Vegas Review-Journal. Earlier claims were brought against former assistant U.S. attorney Thomas A. DiBiase and the Citizens for Responsibility and Ethics in Washington, which reached a settlement with Righthaven in May.

The lawsuits are similar to those brought by the Recording Industry Association of America against individuals who illegally downloaded music and by the District-based US Copyright Group, which targeted those who downloaded movies. But the wrinkle is that Righthaven represents itself, after buying the copyrights from the newspaper.

"This is a new kind of business model," said attorney Kurt Opsahl with the Electronic Frontier Foundation, which has volunteered to coordinate legal teams for some defendants. "Righthaven is purchasing the copyright and they are not owning these copyrights for the purpose of licensing them to others; their core business is filing lawsuits."

Righthaven registered as a limited liability company with Nevada's secretary of state in January. Two months later, the lawsuits began. The group typically buys rights after first determining if it can find possible infringements.

The alleged infringements of the defendants vary. DiBiase posted crime clippings on a Web site he maintains about murder investigations that have proceeded in the absence of a body. CREW used the Las Vegas newspaper's articles as supporting documentation for a report on the most corrupt politicians. But Righthaven attorneys say the usage of the newspaper's material -- even when the defendants cite and link to the original source -- is a copyright infringement that allows them to seek $75,000 in damages and the transfer of domain names.

"I'm not sure the amount sought or settled for is a direct reflection of the quantum of guilt or the egregiousness of conduct," said McDermott Will & Emery Partner Robert W. Zelnick. "But from what I've been reading, many of the parties are settling for a number that's around a few thousand dollars. I think from their perspective, it would cost more to hire a lawyer with expertise to evaluate the claims and pull together defenses."

That was the rationale of CREW, which settled its case with Righthaven for a confidential sum in May. According to the complaint filed in Nevada District Court, Righthaven sought redress for CREW's usage of 12 Review-Journal articles on Sen. John Ensign (R-Nev.), which were republished in their entirety on the watchdog's Web site. CREW Chief Counsel Anne Weismann said that even though she considers the group's usage of the material "benign," it would have considered taking the articles down.

"They didn't ask us to cease and desist, instead they just rushed into a lawsuit," Weismann said. "Had we gotten a cease-and-desist letter, it's quite possible we would have reevaluated based on that. But writing a cease-and-desist letter is not going to lead to money. I think it's pretty clear why that's the course they're not following and it exposes their underlying interest here, which is strictly commercial."

But Righthaven chief executive Steve Gibson said that the resources to generate such cease-and-desists requests, which often prove ineffective, are costly. The decision to forgo such a demand is not an indication that the company will treat every situation similarly, he said. Individuals who posted articles in which they were cited as a source, for example, might be treated differently than those who posted batches of stories on a particular subject wholesale -- but the group intends to go after perceived copyright infringements no matter how innocuous the usage may seem.

"Merely because in a number of cases we don't send any prior notice to the infringer doesn't mean we don't reserve the ability to be both lenient and humane in our approach to addressing the infringement," he said. "We just want folks to understand that infringement that replaces the publisher is not the right thing to do."

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