GPWA Times Magazine - Issue 14 - October 2010

Do you copy? The Righthaven lawsuits are just the tip of the iceberg for a publishing community that is frustrated with seeing its content stolen on a regular basis By Vin Narayanan I gnorantia legis neminem excusat. Ig- norance of the law excuses no one. From the Romans to the British and the Americans, this old Latin adage has been an important legal principle. And as recent events have shown, when it comes to copyright law, ignorance can cost you a lot of money. In the United Kingdom, English Premier League fixtures are protected by copy- right, and it requires a significant licens- ing fee to publish them. In the United States, copyright infringe- ments can be punished by fines of up to $150,000 per infringement. And as original content providers become more vigilant about enforcing their copy- right, it’s easy for webmasters who unwit- tingly broke the rules to be dragged into expensive lawsuits. This year alone, copyright troll firmRight- haven has filed more than 115 lawsuits al- leging copyright infringement, including a few against online gambling affiliates. Righthaven has been searching for Las Vegas Review-Journal articles that have been used on other Web sites, acquiring the copyright to those stories, and suing the Web site owners, accusing them of in- fringing that copyright. The lawsuits, which were filed without requesting that the offending content simply be taken down, originally asked for $75,000 in statutory damages. In more recent lawsuits, Righthaven has been asking for the full $150,000 in statutory damages. The bulk of the lawsuits involve instances where entire Review-Journal stories were reproduced without permission. In many cases, the Review-Journal was credited with writing the story and a link back to the original source material was provided. Righthaven has settled 26 cases so far, with reported settlement ranges between $2,000 and $5,000. The minimum a judge can punish for a defendant in damages is $200. That is the punishment of unintentional infringement. As of press time, only one case had reached court. And the case isn’t exactly going Righthaven’s way. The defendant in this case is unemployed and representing herself. The judge in the case, Robert Johnston, is forcing Right- haven to settle for a very low price, indi- cating that if they don’t, Johnston will or- der damages of just $200, saying that’s the minimum the law allows and the statute gives him discretion in awarding costs and fees. The Las Vegas Sun reports Johnston as saying: “It sounds like this can be a lot less than four figures.” One defendant fell victim to an RSS feed published by a defendant in a separate case. Two Review-Journal stories ap- peared on his site as a result of that RSS feed. According to the Las Vegas Sun , he’s offered to settle the case for $10.87, the amount of money he made from Google AdSense during the period Righthaven could assert its copyright claim. Even forum owners, who are supposed to be protected from copyright infringement lawsuits by the “safe harbor” provision in the Digital Millennium Copyright Act, are being sued. Righthaven is trying to get around the har- bor by saying the defendants have been “willfully blind” to copyright infringement and lack a proactive policy to address it. While it is doubtful a judge will look fa- vorably on that argument — it contradicts both the letter and spirit of the DMCA — the costs of litigating could force some forums to settle. The Righthaven lawsuits are just the tip of the iceberg for a publishing community that is frustrated with seeing its content stolen on a regular basis. For the publishing industry, their content is their product. It is what they hold most dear. It costs a significant amount of money to produce good content. Their business model is to make money by selling advertising on their content pages. And the industry views the reposting of entire stories without permission as outright theft. A link back to the original source is not “equitable payment” in their minds. So as publishers become more aggressive about protecting their copyright, and as deplorable as Righthaven’s lawsuits and tactics are, affiliates cannot claim igno- rance of the law as a valid defense. Webmasters have to restrict their use of copyrighted material to what is consid- ered “fair use” under copyright law. Here are some best practices that should keep affiliates out of trouble. (Note: These are guidelines I followmyself, and they are based on my experiences in journalism and the publishing industry.) Continued on page 14 12 Do you copy?