Righthaven, Pam’s House Blend, and Fair Use

A few minutes ago, Pam Spaulding (@Pam_Spaulding) twitted a link to a posting on her blog, Pam’s House Blend.  It seems she got caught up in the Righthaven copytroll mess and lost what is (to her and, I am sure, to me) a great deal of money in a settlement, almost enough to kill her blog (let’s hope she survives).

I’ve been following Righthaven for some time now, and even had contributed the following to The 2010 CCCC-IP Annual:

The ‘Fair Use’ Challenge

This could be the year that the ‘fair use’ doctrine finally loses its potency as a protector of academic activity, especially online.  Righthaven LLC may be forcing the courts to establish rigid, individualizable guidelines for what has been a poorly defined (though significant) part of American copyright protections and rights.  ‘Fair use’ “allows anyone to copy, quote, and publish parts of a copyrighted work for purposes of commentary, criticism, news reports, scholarship, [or] caricature”(Heins). According to the U.S. Copyright Act (§107):

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the efect of the use upon the potential market for value of the copyrighted work.  (Copyright Law)

Defining in detail just how much of something can be used — and in what specific circumstances — will cast a pall over attempts at incorporating parts of extant works into new ones. Until this changes, the lack of definition in the law provides important protection for the artist, the scholar, and the student.

Founded by people associated with Stephens Media, a holding company controlling the Las Vegas Review-Journal, and with MediaNews Group, Inc., the owner of The Denver Post, Righthaven has initiated some 200 lawsuits against bloggers and others over the past year or so.  Most of the suits, so far, are being settled out of court, but at a cost that will make bloggers, writers, students and scholars think twice about pushing the currently amorphous limits of ‘fair use’ as they use material they find on the Internet.

Given the risk-averse nature of most schools and colleges, this may lead to even greater attempts to contain student (and faculty) activity on the Web, placing it behind increasingly strong barriers.  Protective and proprietary software systems such as Blackboard may end up limiting, even more than they do today, student ability to interact directly with the Internet—an important part of their learning.  In addition, faculty may find themselves reluctant to ‘network’ publicly as freely as they might from fear of punitive results, their role as public intellectuals further curtailed.

Making matters potentially worse, in November of 2010, The Denver Post published a “Notice to Readers About Denver Post Copyright Protections” that reads, in part, “fair use of our content restricts those who want to reference it to 23reproduce no more than a headline and up to a couple of paragraphs or a summary of the story” (Terms of Use).  The Notice continues with a ‘request’ that a link to the Post’s website be included.  What’s most interesting about this Notice—and most disturbing—is the way it assumes that ‘fair use’ can be defined by a particular entity for its products.  The use of ‘our content’ makes it clear that the Post is not speaking for other organizations but is defining what it finds acceptable as ‘fair use.’

The move from a generalized legal concept to one that can be crafted by an individual organization would mean that users would have to check in each individual instance for what the particular media outlet defines as ‘fair use.’  If a Notice such as the one The Denver Post published could not be found, bloggers, scholars, and others quoting from an article would have to assume the most narrow interpretation of ‘fair use’ possible.  The Post includes a threat with its Notice: “we will use all legal remedies available to address… infringements.”  The company is not kidding: Righthaven was created to do just this.

The Righthaven model, according to the Electronic Frontier Foundation, is fairly simple: “They find cases by (a) scouring the Internet for parts of newspaper stories posted online by individuals, nonprofits, and others, (b) buying the copyright to that particular newspaper story, and then (c) proceeding to sue the poster for copyright infringement. Like the RIAA and USCG before them, Righthaven is relying on the fact that their victims may face huge legal bills through crippling statutory damanges and the prospect of paying Righthaven’s legal fees if they lose the case. Consequently, many victims will settle with Righthaven for a few thousand dollars regardless of their innocence, their right to fair use, or other potential legal defenses” (Esguerra).

Because of its cozy relations with Stephens Media and MediaNews Group, many of the copyrights purchased have come from newspapers owned by those companies.  The results of Righthaven action have included suits against a man in Las Vegas for quoting a story about his own activities (Righthaven v Anthony Curtis) and another against an autistic youth in North Carolina for posting a picture without permission (Roberts).  Though the Electronic Frontier Foundation has taken on Righthaven, backing the defense of the blog Democratic Underground (Electronic Frontier Foundation), the cost of fighting Righthaven proves prohibitive to most, so they often settle, for a still-stif penalty.  Bloggers and others not yet targeted but wanting to use material Righthaven might gain copyright to will find that they must either abide by Righthaven’s own narrow interpretation of ‘fair use’ or avoid the material altogether, finding other sources.

In October of 2010, Righthaven lost a round in court over its claim of an overstepping of ‘fair use’ rights (Green, Oct. 20) in one of the lawsuits it has brought.  In February, Righthaven appealed (Green, Feb. 15).  Though this legal story has achieved some notice on the blogs and in newspapers, it has yet to find real attention in the academic community.  It should.

As academics, we have a duty to argue for the broadest possible interpretation of ‘fair use,’ for the concept as established, in part, to further our activities as teachers and as scholars.  This is an area where our public intervention can prove significant and appropriate.

Works Cited

“Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92.”  Web. 8 March 2011. http://www.copyright.gov/title17/92chap1.html#107

Electronic Frontier Foundation. Web. 8 March 2011. http://www.eff.org/cases/righthaven-v-democratic-underground

Esguerra, Richard.  “Righthaven’s Brand of Copyright Trolling.”  Electronic Frontier Foundation. Web. 8 March 2011. http://www.eff.org/deeplinks/2010/09/righthavens-own-brand-copyright-trolling

Green, Steve.  “Righthaven defendant wins first lawsuit dismissal motion.” Las
Vegas Sun.  October 20, 2010. Web. 8 March 2011.  http://www.lasvegassun.com/news/2010/oct/20/righthaven-defendant-wins-first-lawsuit-dismissal-/

Green, Steve.  “Righthaven Appealing Fair-Use Ruling in Copyright Infringement Case.” Las Vegas Sun.  February 15, 2011. Web. 8 March 2011.  http://www.lasvegassun.com/news/2011/feb/15/righthaven-appealing-fair-use-ruling-copyright-cas/

Heins, Marjorie.  “The Progress of Science and Useful Arts”: Why Copyright Today Threatens Intellectual Freedom.  Second Edition.  New York: Free Expression Policy Project, 2003.  Web. 8 March 2011. http://www.fepproject.org/policyreports/copyright2d.pdf

Righthaven v Anthony Curtis.  Web. 8 March 2011. http://dockets.justia.com/docket/nevada/nvdce/2:2010cv01018/74389/. For more examples see http://www.righthavenlawsuits.com/lawsuits.html and http://righthavenvictims.blogspot.com/2010_12_01_archive.html.

Roberts, Michael.  “Brian Hill: Hobby Blogger Sued by MediaNews, Righthaven Is 20, Chronically Ill, Autistic.” Denver Westword. Web. 8 March 2011. http://blogs.westword.com/latestword/2011/02/brian_hill_sued_medianews_group_righthaven.php

“Terms of Use: Notice to Readers About Denver Post Copyright Protections.” The Denver Post.  November 14, 2010.  http://www.denverpost.com/ci_16594528