The troubled newspaper industry has been railing for years about how the Internet is destroying their business model, and taking actions such as paywalls and talking about changing copyright law.
Now, one newspaper is going further -- it's taking bloggers that posted its stories to court, with the result that a number of blogs have been shut down and are facing multi-thousand-dollar settlement charges.
TheLas Vegas Review-Journal set up an agreement with Righthaven LLC that enables Righthaven to sue, on behalf of the Review-Journal, bloggers who reposted content from the paper. And it has done so, filing nearly 80 cases, regardless of whether the blog was commercial or gave credit to the source.
"Righthaven has offered no prior contact, cease-and-desist warnings or any attempt at good-faith resolution whatsoever," reported The Armed Citizen , which posted six articles from the Las Vegas paper among 4,700 articles it has posted on the subject of Second Amendment rights. "The Armed Citizen has been excerpting articles from newspaper, TV station, and radio station websites for a number of years without a single complaint or infringement notice."
(Joe Strupp, of Media Matters, notes that, thus far, conservative Nevada political candidates who have posted entire articles have not yet been targeted, raising the possibility that the candidates need to account for an in-kind donation for use of the articles.)
Certainly, by the law, bloggers who posted text of entire articles were wrong, even if they cited the source.
On the other hand, Righthaven's action resembles that of law firms that make money by systematically filing Americans with Disabilities Act lawsuits against a whole string of businesses in a city, regardless of whether a disabled person has actually had an issue, or Recording Industry Association of America copyright suits against 12-year-old girls . Is the goal here really to protect the copyright, or to shake down a variety of individuals who don't have the resources to fight it?
In one case, the National Organization for the Reform of Marijuana Laws (NORML), settled its case, for a single article, for $2,185. $2000 an article is more than $150,000 for the 80 suits, even if the bloggers posted just a single article -- and some of them, like the Armed Citizen, posted several. In addition, there are the legal costs involved.
In another case, the blog in question was one about cats in cities -- a blog with no advertising and no commercial potential whatsoever, writes James Rainey in the Los Angeles Times. In still another case, the news article was posted in the comments section by a third party and was soon removed by the blog owner.
Ironically, in one case, a blog from a progressive organization is being sued for posting an article for which it was the source of the news, which some articles noted would make it difficult to do such reporting in the future. "It the height of stupidity for a news organization to sue its own source over display of an article in which the defendant figures prominently," noted one , adding that the lawsuit ran the real risk of actually bankrupting the organization in question.
And in general, the lawsuits make it more difficult for reporters to write about anything associated with the nearly 80 defendants in question. "Simply put, this puts the RJ's reporters and photographers in a serious conflict with just about everything they cover," writes the media watchdog blog LV Journal Review.
More than money may be at stake -- according to the filing associated with at least one of the lawsuits, Righthaven is also demanding "names and addresses (whether electronic mail addresses or otherwise) of any person with whom the Defendants have communicated regarding the Defendants’ use of the Work" -- meaning, a list of all the blogs' members? -- and rights to the domain names of the blogs under litigation.
The bigger question is whether other newspapers, emboldened by Righthaven's action, may be tempted to follow the same course.
"Can't we acknowledge that copyright law has a righteous purpose, to protect original content and encourage creators to create even more?," the LA Times' Rainey wrote. "Can't we also admit that a little creative reuse, far from thievery, can drive new attention to good work? The rub has been where to draw the line to determine what, exactly, constitutes "fair use.""
Rainey recommends that bloggers not republish more than three paragraphs, always name the source, and always link to the original.
It turns out that Fair Use is more flexible and confusing than you might at first guess. Rosemont Enterprises, Inc. v. Random House, Inc., 366 F. 2d 303, 307 (2d Cir. 1966):
"The fundamental justification for the privilege lies in the constitutional purpose in granting copyright protection in the first instance, to wit, "To Promote the Progress of Science and the Useful Arts." U. S. Const. art. 1, § 8. See Mathews Conveyor Co. v. Palmer-Bee Co., 135 F.2d 73 (6th Cir. 1943); Note, 56 Colum.L.Rev. 585, 595 (1956). To serve that purpose, "courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry." Berlin v. E. C. Publications Inc., 329 F.2d 541, 544 (2d Cir. 1964). Whether the privilege may justifiably be applied to particular materials turns initially on the nature of the materials, e. g., whether their distribution would serve the public interest in the free dissemination of information and whether their preparation requires some use of prior materials dealing with the same subject matter. Consequently, the privilege has been applied to works in the fields of science, law, medicine, history and biography. See Latman, supra at 10." </blockquote>