Patent trolling is big business, especially in the US, where courts have the ability to award triple damages for patent infringement. But now a new breed of trolls is appearing: the copyright troll. Wired reports on efforts by Nevada-based company, Righthaven, to sue bloggers and website owners who have reposted newspaper articles without permission from the copyright owner.
This is one of those “only in the US” stories, because US copyright laws give copyright owners the ability to claim “statutory damages” of up to US$150,000 for copyright infringement, without the need to show actual harm or damage.
Righthaven has been in existence for only a few months, but has already filed 80 lawsuits. Its business model works like this:
- locate an article from the Las Vegas Review-Journal newspaper that has been posted on a blogsite or website without permission
- acquire the copyright in the article from the Las Vegas Review-Journal. This is usually done after the potential infringement is discovered, though in some cases the copyright may have been assigned beforehand
- then sue the blogger or site owner for copyright infringement and demand an extravagant amount in statutory damages
- settle with the terrified blogger or site owner for a lesser amount (thus avoiding legal scrutiny of its potentially flimsy claim), then share the spoils with Stephens Media, the owner of the Las Vegas Review-Journal.
But there are a few problems with this business model.
For starters, it is causing a backlash against Stephens Media, the owner of the Las Vegas Review-Journal. The Blogger News Network reports:
Righthaven has figured out how to monetize the blogosphere, and Stephens Media has figured out how to extract a few more bucks from their newspaper holdings. For now, at least – until bloggers and news aggregate sites begin acting on the principle that any content in any Stephens Media newspapers is about as toxic as radioactive sewer sludge. While a fair number of bloggers and websites have paid up just to make it all go away, others are fighting back by either ‘Righthaven-proofing’ their sites, or blacklisting Stephens Media through their site-posting rules. There are even Firefox and Chrome plug-ins to automatically exclude Stephens Media from your internet browser. Righthaven and Stephens Media may perhaps gain in the short run, but prospects for long-term gain seem pretty iffy.Maybe Stephens Media has already decided the newspaper is dead as a business model, because its short term gain may lead to long term extinction. A business model that requires you to sue your customers can’t last forever, because you soon won’t have any.
The trollish behavior of Righthaven has also incensed a number of people within the legal fraternity, and a number of legal defences are being formulated in reaction to the infringement claims. These defences include:
- the argument that Righthaven didn’t own the copyright at the time of the alleged infringement. I’m not sure how strong this defence is under US law. Under New Zealand law when you take an assignment of copyright you would also normally take an assignment of all rights of action for any infringements arising before the date of the assignment
- potential fair use arguments. Fair use is the doctrine that allows copyright material to be used for the purposes of commentary, criticism, news reporting, research, teaching or scholarship. We have a similar provision under our copyright laws (section 42 of the Copyright Act 1994), though our “fair dealing” exceptions to copyright infringement are not generally as broad as those in the US
- an implied licence defence. By failing to limit the ability of users to copy and paste text by technical means, and by encouraging sharing of its articles via various social media sites, the newspaper has given an implied licence to people to use, copy and share the material
- the innocent infringement defence. In some cases material has been posted by third parties in comments sections of blogs and sites, and bloggers and site owners have argued they cannot be held responsible for such actions. Such defences would certainly have an impact on the potential damages that might be awarded, though they will not change the fact that an infringement is still an infringement.
There might still be good reasons for a copyright owner to want to sue a blogger or site owner for copyright infringement (e.g. to prevent reputational damage), but in most cases the plaintiff isn’t going to make a killing, and will probably be more interested in stopping the use, rather than profiting from it. In most cases a cease and desist letter will do the job (provided it is based on sound legal principles).
Also, much of the typical copy and paste stuff you see on blogsites here (including this one) is permitted under our copyright laws. Fair dealing for the purposes of commentary, criticism or news reporting is a defence to copyright infringement, even if the exact parameters of the “fair dealing” concept aren’t always clear.
(Hat tip: IP Biz blog)