Business Models, Copyright, Experimentation, Social Role

Fighting Copyright Trolls — The Electronic Freedom Frontier Strikes Back at Righthaven

New Troll and Old Troll (Front)
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An interesting rights case is developing, with Las Vegas as ground zero, for there resides Stephens Media and Righthaven. Stephens Media publishes the Las Vegas Review-Journal, and formed Righthaven to administer its copyright claims. Righthaven has been suing a number of news sites for copyright infringement, alleging that using short snippets of Las Vegas Review-Journal articles constitutes infringement, suing for $75,000 initially, and then settling for a few thousand dollars in most instances.

The Electronic Freedom Foundation has stepped in and filed the first-ever countersuit Righthaven has faced. The EFF countersuit was filed on behalf of Democratic Underground, a political site that apparently used five sentences of a Las Vegas Review-Journal article (less than 10% of the entire article), and was subsequently sued.

In addition to defending Democratic Underground on the basis of fair use, the EFF is alleging that Stephens Media, founded in March 2010, formed Righthaven specifically to fulfill a business model predicated on pursuing allegations of copyright infringement to settlements of a few thousand dollars each time, and thereby providing a source of revenue for the publisher.

This case is a particularly abusive instance of a broad and aggressive strategy by Stephens Media, working in conjunction with its “little friend” Righthaven as its front and sham representative, to seek windfall recoveries of statutory damages and to exact nuisance settlements by challenging a fair use of an excerpt of an article that Stephens Media makes freely available on the Internet, and which it encourages its users to “Share & Save” at least 19 different ways.

The “little friend” reference relates to Las Vegas Review-Journal Publisher Sherman Frederick calling Righthaven his “little friend” in copyright protection matters.

Other allegations include a shady lawyer who may or may not work directly for Stephens; possible practices of Righthaven finding excerpts online and only then filing copyright forms before to suing alleged infringers; and failure to inform possible infringers, providing notice that would allow them to take down the material at issue to avoid litigation.

It doesn’t stop there. Democratic Underground thinks it has some copyright dirt on the Las Vegas Review-Journal, as well, according to the Las Vegas Sun:

The Democratic Underground response then charged Stephens Media has its own copyright issues, alleging: “employees of Stephens Media have cut and pasted excerpts of copyrighted materials to which Stephens Media has no license or copyright rights on multiple occasions.”

The EFF attorneys are working on the case pro bono.

Righthaven added a new client in August, after the incidents alleged in this counterclaim. Wired describes the activities of Righthaven as “copyright trolling.”

It’s sad to say, but we all know how such intimidation works in a society with bilateral legal costs — i.e., it costs to prosecute and it costs to defend. If these charges are true, then Righthaven has been skimming money through what amounts to a protection racket — “Hey, we wouldn’t want anything bad to happen to this little blog of yours, now would we?” Naive content purveyors with little money and a lot of perceived exposure are the perfect targets for such schemes.

Like the trolls from fables, Righthaven and Stephens Media might also just have a bad attitude. I mean, a nicer entity would create a permissions system, which could be (net the lawyer’s salary) just as lucrative as the litigious approach. It seems much kinder to generate revenues from syndication and permissions — far superior in aspect and countenance to being accused of operating as a copyright troll.

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About Kent Anderson

I am the CEO of RedLink and RedLink Network, a past-President of SSP, and the founder of the Scholarly Kitchen. I’ve worked as Publisher at AAAS/Science, CEO/Publisher of the JBJS, Inc., a publishing executive at the Massachusetts Medical Society, Publishing Director of the New England Journal of Medicine, and Director of Medical Journals at the American Academy of Pediatrics. Opinions on social media or blogs are my own.


2 thoughts on “Fighting Copyright Trolls — The Electronic Freedom Frontier Strikes Back at Righthaven

  1. This could be a very important case — copyright versus the blogosphere, or what is “fair use” anyway? But we only seem to have one side’s arguments. Perhaps SK can track down an expert and more-or-less neutral legal opinion in the legal blogosphere, or even (gasp, choke) in the archaic newspapers.

    Posted by David Wojick | Sep 30, 2010, 10:11 am

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The mission of the Society for Scholarly Publishing (SSP) is "[t]o advance scholarly publishing and communication, and the professional development of its members through education, collaboration, and networking." SSP established The Scholarly Kitchen blog in February 2008 to keep SSP members and interested parties aware of new developments in publishing.
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