Against the Grain Volume 23 | Issue 3 Article 29 June 2011 Legally Speaking -- Righthaven: Wrong Model Bryan M. Carson J.D., M.I.L.S. Western Kentucky University Libraries, [email protected] Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons Recommended Citation Carson, Bryan M. J.D., M.I.L.S. (2011) "Legally Speaking -- Righthaven: Wrong Model," Against the Grain: Vol. 23: Iss. 3, Article 29. DOI: https://doi.org/10.7771/2380-176X.5907 This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Bryan M. Carson, J.D., M.I.L.S. (Western Kentucky University) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Legally Speaking — Righthaven: Wrong Model by Bryan M. Carson, J.D., M.I.L.S. (Associate Professor, Coordinator of Reference and Instructional Services, Associated Faculty — Library Media Education Program, Western Kentucky University Libraries, 1906 College Heights Blvd. #11067, Bowling Green, Kentucky 42101-1067; Phone: 270-745-5007; Fax: 270-745-2275) <[email protected]> or many years, patent “trolls” have filing suit, many of its targets have reported However, this case didn’t turn out so well bought up patents, then used this power being taken completely by surprise. Indeed, for Righthaven. During the discovery phase, Fto file lawsuits against “infringing” com- many alleged infringers have reported that they the DU requested that Stephens Media pro- panies. Officially known as “non-practicing would have voluntarily removed the newspaper duce their agreement with the Review Journal. entities” or NPEs, trolls “derive all or most articles from their Websites if they had been After examining this document, DU’s lawyers of their revenue from the enforcement of pat- asked to do so.”5 sought to unseal the agreement and release its ents. Patent trolls are clearly distinguishable The Righthaven model has resulted in contents to the public. The Electronic Free- from major research institutions, universities, many small blogs and Websites being charged dom Foundation supported this request, which and businesses that derive their revenue, re- large sums of money — but still less than it Righthaven and Stephens Media opposed. spectively, from funded research, tuition and would cost to defend a lawsuit. 120 cases (al- However, Judge Rodger Hunt (D. Nev) grants, and the sale of products and services. most half of those filed) have been settled with agreed that the document should be unsealed Some of the largest of these NPEs raise large revenue of $420,000. This provides an average and made public, stating: “consider[ing] the funds with which to purchase the patents they yield of around $3,500 per case.6 Recently multitude of cases filed by Righthaven, on seek to enforce — without any plans to turn other entities and newspapers have become the claimed basis that Righthaven owns the those patents into marketable products or involved with the Righthaven saga, including copyrights to certain Stephens Media copy, services. Instead, they then use these funds to WEHCO Media and Media News Group (the it appears to the Court that there is certainly enable — through direct or veiled threats of parent company of the Denver Post). an interest and even a right in all the other infringement — their pursuit of royalties from defendants sued by Plaintiff to have access to The backlash against Righthaven has successful businesses.”1 this material.”12 been swift and broad-based. Many attorneys Now a new variety of troll has arisen in the and journalists have opposed this practice, It turns out that the copyright “assignment” realm of copyright. The newspaper industry including the Las Vegas Sun (the other major is being made solely for the purposes of the has fallen on hard times, so Stephens Media daily newspaper). The Electronic Freedom litigation, which DU and Righthaven argue 13 LLC has come up with a new way to make Foundation has condemned this model,7 and makes it invalid and “a sham.” The agree- money. Stephens Media (the parent company several anti-Righthaven Websites have been ment reads in part as follows: of the Las Vegas Review-Journal) has joined set up.8 Several recent cases have held that the Stephens Media shall retain (and is with attorney Steven Gibson to form a joint postings are a matter of fair use. In April, the hereby granted by Righthaven) an ex- 2 venture named Righthaven. Internet registrar GoDaddy seized the Right- clusive license to Exploit the Stephens As Bruce Strauch pointed out in his ex- haven domain name after discovering incorrect Media Assigned Copyrights for any cellent April column for Against the Grain, information in their registration documents.9 lawful purpose whatsoever and Right- the business model for Righthaven is to sue Several judges have also found issues with haven shall have no right or license to Websites, user forums, and blogs whose users the company’s aggressive enforcement tech- Exploit or participate in the receipt of have posted copies of articles or photographs niques. One significant case wasRighthaven royalties from the Exploitation of the from the Las Vegas Review-Journal. The v. Democratic Underground (“DU”). The DU Stephens Media Assigned Copyrights company searches the Internet for material (a major blog associated with the Democratic other than the right to proceeds in as- from the paper. When it finds items posted, Party) was sued over a five-sentence extract sociation with a Recovery.... Stephens Righthaven purchases the rights from the from the paper.10 Righthaven alleged in its Media shall have the right at any time to Review-Journal, registers the copyright, and complaint that it would suffer irreparable harm terminate, in good faith, any Copyright files a lawsuit. Between March 2010 and because of this publication, and that: Assignment (the ‘Assignment Termi- March 2011, the company filed 254 lawsuits nation’) and enjoy a right to complete 3 • Righthaven holds the exclusive right for copyright infringement. reversion to the ownership of any copy- to reproduce the Work, pursuant to 17 right that is the subject of a Copyright Not only does Righthaven ask for money, U.S.C. § 106(1). in most cases it also requests that the courts Assignment....14 • Righthaven holds the exclusive right to transfer the domain names under the provisions This agreement makes Stephens Media the 4 prepare derivative works based upon the of the Digital Millennium Copyright Act. Ac- real party in interest, even though Stephens has Work, pursuant to 17 U.S.C. § 106(2). cording to one blogger, the Righthaven model not been filing the lawsuits. The Electronic works as follows: “Most of the lawsuits filed • Righthaven holds the exclusive right to Freedom Foundation maintains that assign- by Righthaven are based upon the display of distribute copies of the Work, pursuant ment purely for the purpose of litigation is a single Review Journal article on the offend- to 17 U.S.C. § 106(3). invalid.15 The Stephens Media agreement is ing Website. The lawsuits allege ‘willful’ • Righthaven holds the exclusive right to troublesome for another reason. It does not copyright infringement... Since Righthaven publicly display the Work, pursuant to assign all Review-Journal articles. It assigns 11 does not send cease and desist letters before 17 U.S.C. § 106(5). continued on page 57 56 Against the Grain / June 2011 <http://www.against-the-grain.com> work in a discussion forum was for educational The CIO claimed that the fair use provisions Legally Speaking purposes, namely to stimulate commentary of 17 U.S. Code § 107 allowed this article to from page 56 and criticism, and had no actual or potential be posted. Many people think of fair use as effect on the work’s potential market.... The an exception to copyright law, but in reality it only those articles that Stephens Media finds copyrighted work was an informational piece is an affirmative defense. In other words, the to have been used. The pertinent language intended to stimulate discussion, and Hoehn’s defendant tells the court that “I did violate the reads as follows: use of it furthered this goal.”20 owner’s exclusive rights, but I was entitled to Stephens Media shall assign (at the Since Wayne Hoehn and I both live in do so.” Thus in the CIO case, it made sense for times stated) to Righthaven, pursuant to Bowling Green, I naturally had to interview the defendants to claim fair use. The language the procedures set forth in Section 7: (a) him about the case. I spoke with Mr. Hoehn of § 107 reads as follows: any copyrights owned by Stephens Me- on February 23, 2011. He gave me the factual Notwithstanding the provisions of sec- dia that Stephens Media desires to be background of the case, noting that he did give tions 106 and 106A, the fair use of a the subject of Searching (the “Searching credit to the paper and the author of the article. copyrighted work, including such use Decision”), with each such respective Again, Mr. Hoehn reiterated that the purpose by reproduction in copies or phonore- assignment to occur within a reasonable of the posting was political commentary and cords or by any other means specified time after Stephens Media makes each discussion, a purpose that is supported by the by that section, for purposes such as respective Searching Decision, (b) any fair use principles (and, I would argue, the First criticism, comment, news reporting, copyrights owned by Stephens Media Amendment).