Copyright knights or copyright trolls?

Rulings on a couple Righthaven appeals could have a far-reaching effect on fair use

In 2010 and 2011, Righthaven, a Nevada company that once described itself as “the nation’s pre-eminent copyright enforcer,” sued hundreds of website owners—Matt Drudge, the conservative political forum Free Republic, the liberal satire site Democratic Underground, the Brother of Locomotive Engineers Building Association, Senate candidate Sharron Angle, the United States Marijuana Party, Buzzfeed. The company also sued individuals with sites with names like “It Makes Sense Blog” and “Keith Comb’s Blahg.” On each website it went after, Righthaven had found an article or a picture originally created by either the Las Vegas Review-Journal or the Denver Post, its two partners. In each case, Righthaven asked the court to stop the offending website from displaying the article or picture, instruct the domain name registrar for that website to hand over the domain name to Righthaven, and award damages—the law allows for as much as $150,000, under the right circumstances—and, sometimes, attorney’s fees as well.

What was particularly brash about Righthaven’s attempts to enforce these copyrights was the arrangement it had with the two newspapers. Generally, if copyright holders want to bring a case against someone who’s infringed on a copyright, they hire a lawyer and file the suit. Righthaven may have been started and staffed by lawyers, but it had a different business model. The company had signed one “Strategic Alignment Agreement”—a partnership rather than a client representation—with Stephens Media, which owns the Review-Journal, and another with Media News Group, which owns the Post. These agreements, the two companies believed, gave Righthaven enough control over their copyrighted photos and stories to bring suit against any of the more than 200 alleged infringers that Righthaven’s lawyers found. According to the agreement, released during legal discovery, after deducting the costs of bringing the suit, Righthaven would hand over half of the damages recovered to its partner and could keep the rest.

Many of the suits that Righthaven filed were settled out of court—reportedly, in some cases, for thousands of dollars, a nasty penalty for a small-time blogger. But the judicial system didn’t look favorably on this business model, and in none of the cases that went to trial did a judge find in Righthaven’s favor. In 2011, a Nevada judge found that the company did not even have standing to sue—that the agreement that Righthaven had come to with its media partners didn’t hold up legally.

Righthaven filed a handful of appeals and, along the way, started worrying companies like Google and organizations like the Recording Industry Association of America, both troubled about what the legal outcome of these cases would mean for business. Of those appeals, only two have gone forward: Judges in California heard arguments in both cases on Tuesday. If the judges find against Righthaven, as lower courts did, then the business model that the company dreamed up will be a footnote. But if the courts decide in the company’s favor, its founders hope that it’s a business model that still could thrive.

Troll or enforcer?

There’s a nice way and a not-so-nice way to talk about Righthaven’s litigiousness. The nice way is to call the company a “copyright enforcer.” The less-nice way—the term preferred by opponents like the Electronic Frontier Foundation—is “copyright troll.” It’s a riff on “patent troll,” a slur for companies that buy up patents and aggressively go after violators in order to make a profit.

The argument for applying this term to Righthaven is that the company’s primary concern did not appear to be getting the offending material off the Web. Many website owners’ first notice that they’d attracted the company’s attention was not a polite take-down request, but a lawsuit. Righthaven tried to settle these lawsuits quickly, often for amounts that would make the average blogger think twice before posting a picture ever again.

Steven Gibson, one of the company’s architects, had laid out this strategy in a 2006 article called “The Need for Speed.” In the paper, Gibson and co-author J.D. Lowry tally potential copyright damage awards in the quadrillions, and argue that “the potential value of statutory damages for copyright infringement still mandates more aggressive action on the part of copyright owners.”

The argument against calling Righthaven a “troll” is that, without legal actions like this, anyone with a blog could, by reposting others’ work, theoretically keep copyright holders from reaping their creations’ profits. From this perspective, Righthaven was simply protecting the interests of copyright holders to the extent the law allowed.

“Righthaven was a concerted, intelligent approach,” Gibson said, in an interview earlier this week. “Before Righthaven came along, not many folks were successful in dealing with copyright infringement.”

In the oral arguments before a Ninth District panel on Tuesday, the future did not look bright for this approach, however intelligent. One judge called it “an attempt that’s too cute by half” to get around legal precedent that prevents copyright holders from transferring away the right to sue while keeping all the benefits associated with copyright.

Fair use

In the process of suing all these website owners, Righthaven also dredged up questions about fair use. That’s what the second appeal before the Ninth Circuit court focused on, and what attracted Google (which filed an amicus brief in a third appeal that sputtered out) and the RIAA (which filed an amicus brief in this one) to Righthaven’s mess.

In both Righthaven v. Hoehn, the case appealed Tuesday, and the case for which Google filed a brief, defendants had posted an entire Review-Journal article. The lower judges that heard the cases had decided the reposts were protected under fair use. Righthaven, in its appeals, was fighting that interpretation.

Google was worried that Righthaven’s argument—that reposting a copyright work in full is always illegal—would limit fair use: Google’s had to argue, in the past, that its image search business and Google Books scans do not impinge upon copyrights. The RIAA, on the other hand, was not comfortable with the ruling in Hoehn that posting a whole article—in this case, on a discussion forum—constituted fair use.

The RIAA may end up relieved; on Tuesday, the appeals court appeared less sympathetic than its lower counterpart to the argument that Wayne Hoehn’s posting was protected under copyright law.

“How’s that fair use?” one judge asked. “Did you ever see a newspaper website without a comments section?” To spark discussion, the judges suggested, Hoehn could have commented on the original story or posted an excerpt or a link.

Righthaven’s basically out of business as of now and currently owes the people it sued tens of thousands of dollars in attorney’s fees. But these fair use issues are still live, and there are other lawyers out there ready to go after websites that have posted copyrighted works—particularly images.

“There are a number of attorneys out there who are engaged in trolling as a strategy,” says Kurt Opsahl at the Electronic Frontier Foundation, who argued against Righthaven in one of the appeals. “Most of the ones that I’m familiar with are doing a much more traditional approach. The copyright holders hire them as counsel to represent them in a lawsuit. That doesn’t bring up the issues that were fatal to Righthaven.”

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.