[Update: I somehow missed Ron Coleman’s earlier take on the article, but it’s required reading if you’re interested in the subject. Coleman and Walter Olson both seem on board with, as Olson words it, "steering rights owners into agency complaints or arbitration as an alternative, or at least precondition, to court action."] 

Via Kevin Drum, Wired’s Threat Level has a profile of Steve Gibson, CEO of Righthaven, a company which has applied the much maligned — but often quite lucrative — "patent troll" model to copyright litigation on behalf of publishers:

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he’s making money. …

Gibson’s vision is to monetize news content on the backend, by scouring the internet for infringing copies of his client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven’s formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles from the Las Vegas Review-Journal, his first client. …

Gibson says he’s just getting started. Righthaven has other media clients that he won’t name until the lawsuits start rolling out, he says.

“Frankly, I think we’re having tremendous success at a number of levels,” Gibson says. “We file new complaints every day.”

They sure do; a search on Justia Dockets for "Righthaven" shows a handful of new suits every week, including a recent suit against those scourges of American society, the American Society of Safety Engineers. Here’s the complaint, in which Righthaven requests the Court, e.g.,

3. Direct Network Solutions and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven;

4. Award Righthaven statutory damages for the willful infringement of the Work, pursuant to 17 U.S.C. § 504(c);

5. Award Righthaven costs, disbursements, and attorneys’ fees incurred by Righthaven in bringing this action, pursuant to 17 U.S.C. § 505;

Apparently either the ASSE or one of its chapters (the complaint references the Central Florida Chapter of the ASSE) cut and pasted into their newsfeed a copy of an article from the Las Vegas Review-Journal titled, “Bill would help regulators better enforce safety rules."

Cutting-and-pasting someone else’s article isn’t kosher, but look at the harsh relief claimed by Righthaven.

I’m doubtful of the demand in #3 that Righthaven be given control of asse.org, considering that they raise solely a copyright claim, not a cyber-squatting claim, and "Copyright law does not protect domain names." I suppose the Court has the power to enjoin defendants from further infringing activity, but that’s a far cry from locking someone’s entire website and transferring it simply because there was, at some point, an infringing work on it.

#4 and #5 are standard in copyright litigation: the plaintiff can elect "statutory damages" of up to a whopping $150,000 per incident, just shy of three times the median annual household income, plus the costs (including attorneys’ fees) of suit.

Putting aside those substantial damagins, just hiring an attorney to defend the case will cost a couple thousand dollars, even if they are on a flat fee with someone who specializes in copyright defense.

As Kevin Drum and Wired both note, the notion of litigation "trolling" — whether on behalf of patents or copyright — is not without its critics. That said, as well-intentioned as the ASSE may have been, truth is, it wasn’t their content, and they shouldn’t have posted it. So long as the claims are meritorious, the settlement demands are not extortionate, and the practice of trolling is limited to companies, rather than individuals — the primary target of the RIAA’s hopelessly failed litigation campaign — then I’m not that worried about due process or "SLAPP" concerns.

But two aspects of the practice as applied to publishing copyrights bother me.

First, there is no doubt that copyright law and copyright norms affect culture. Consider this fascinating article at Ars Technica about how comedy routines changed dramatically once it became taboo to steal other comedian’s jokes. When it comes to copyright trolls, I worry that legitimate fair use of portions of articles will be chilled by litigation concerns, as is already the case in the world of film.

Second, if we assume — as I do — that the bulk of these cases involve minor infractions that can and should be settled for less than $10,000, that raises a basic question of fairness. One of the least-discussed aspects of the civil justice system is how we have completely different systems for the most common types of claims, i.e. employment discrimination claims and minor injuries.

In many states, including Pennsylvania, if you want to sue an employer for employment discrimination, you can’t. Instead, you need to file an agency complaint — which you must do within 180 days, much sooner than you must file any other type of lawsuit — and then you must work your way through the agency process before you can even begin your lawsuit in court.

Similarly, as the Court of Common Pleas of Allegheny County here in Pennsylvania pioneered, a number of jurisdictions enforce compulsory arbitration for claims of low value. If you have one of those low-value claims, the full powers of the civil justice system aren’t available to you, at least not initially.You need to go through the compulsory arbitration system first, thereby delaying your relief and making it harder for you to prosecute it.

Are agency investigations and compulsory arbitration bad ideas? Not necessarily. Both of them do, in fact, save defendants a tremendous amount of time and money, and sometimes they facilitate a resolution of the case in a much cheaper and more expedient manner than the full-fledged trial courts.

But if our purpose in setting up those parallel legal systems is to lessen the burden on the defendant for comparatively small claims, why not set up as a similar system for comparatively small copyright infringement claims like those brought by Righthaven? Is there some reason that a claim arising from a single copying of a single newspaper article should be entitled to start immediately in the federal district courts while a claim arising from the wrongful termination of an employee for discriminatory reasons should have to go through a year or more of agency investigation?

It would seem to me that the terminated employee — who may have wrongfully suffered a grievous economic injury — should have a stronger entitlement to immediate relief than a well-funded company that exists solely to carry out litigation. 

[As I commented at Overlawyered following Walter’s link here] I think these types of copyright claims are more appropriate for agency investigation or arbitration than employment discrimination or personal injury suits. The latter two are typically dependent upon oral testimony (and thus the credibility of the witnesses, which needs to be assessed through live testimony), while the former could reasonably be evaluated solely on the documents.

Just taking that ASSE case as an example, all the agency would really need, other than the complaint filed, is an answer from the defendant admitting or denying the material facts about the extent and nature of republication.

And that would be it; the investigator or arbitrator could then look at those documents, the core of which would be fewer than 20 pages, and start discussing with the parties a reasonable settlement. That would obviate the need to bring on attorneys for hundreds of dollars an hour, and would keep these small potatoes matters from clogging our federal courts.

  • Hey, thanks for the, how you say, “shouting out.” I really enjoyed your article too. As I say in mine.

  • DensityDuck

    Unfortunately there’s no way *but* lawsuits to handle copyright claims. There’s no legally-binding way to say “you have to sit down and we’ll negotiate this”; it’s lawsuit or nothing, insofar as compulsion goes. I can violate copyright all I want, and go right on doing it until a judge specifically says “stop” after a trial.
    The *assumption* is that the parties in question will negotiate in good faith to create a resolution, and that the legal system will be used only as a last resort for cases in which one or both parties are being totally unreasonable. Modern actors–on *both* sides of the fence–seem to be jumping directly to “totally unreasonable” right from the get-go, insisting that nuance is impossible, that personal relationships are meaningless and ineffective, that the only thing that matters is The Hard-Line Rules In The Book.
    No wonder that we’ve got an “autism epidemic” when we have so many people saying that no personal interaction could ever produce a lasting result!
    It’s the same deal as the ADA, or medical malpractice; the assumption inherent in the legislation is that lawsuits represent a failure rather than the intended corrective process, but the law isn’t actually *written* that way, and the modern paradigm is that if it’s not in the law then you can do whatever you damned well please.