Righthaven’s suit against Sharron Angle draws increased attention

Las Vegas copyright enforcement company Righthaven LLC's legal action against Nevada U.S. Senate candidate Sharron Angle is bringing wider attention to the company's online copyright infringement lawsuit campaign.

Righthaven since March has filed 117 copyright infringement lawsuits in federal court in Las Vegas against bloggers and website operators throughout North America.

One observer noted that by suing Angle on the Friday afternoon before Labor Day, Righthaven may have been hoping to limit media attention to the case.

If that was the strategy, it's unclear if it worked, as the story was picked up by The Associated Press, was covered by Politico.com and was mentioned on the Fox News Channel. Righthaven was also covered, apparently for the first time, by the Washington Post.

A Post writer noted: "I don't know how common it is for print or web publications to police copyright in the manner this journal is using (via a third-party entity)."

The answer, according to media and legal observers, is that Righthaven's arrangement with the Las Vegas Review-Journal is unusual. Righthaven finds online infringements of Review-Journal stories, columns and editorials; obtains copyrights to that material from the Review-Journal and then files lawsuits over the retroactive online infringements.

The observers also say the Review-Journal/Righthaven practice of suing before asking that infringing material be taken down is unprecedented in recent U.S. newspaper industry history.

The usual procedure in the newspaper industry is that when a newspaper objects to the use of its content online, it asks or demands that the material be taken down. Sometimes infringers are asked to replace the material with links.

"Because damages in copyright lawsuits can run as high as $150,000 for willful infringement even when no actual damages are proved, the suits could prompt some targets to settle — providing a stream of revenue for Righthaven, the Review-Journal and the newspaper's owner, Stephens Media. Notwithstanding that possibility, most news publishers have opted against the mass-lawsuit tactic, fearing that any revenue it could bring in or traffic it could drive would come at the expense of alienating readers," Politico.com's Josh Gerstein wrote in a blog.

Other observers weighed in on several aspects of the case:

• Kate James, writing at gather.com called the Righthaven lawsuits a good thing.

"Many bloggers and journalists are happy that Righthaven is partnering with publishing groups to help crack down on copyright infringement throughout the United States. If Angle has to pay and give up her domain name, this could be a problem for her campaign. Hopefully this is the beginning of tougher standards for Internet copyright infringement rules," she wrote.

• Others asked if the Review-Journal, which has invested in Righthaven, had Righthaven sue Angle so the Review-Journal couldn't be accused of providing an unreported in-kind campaign donation to Angle in the form of a tolerated copyright infringement.

That issue was raised earlier this year when Righthaven and the Review-Journal didn't sue Danny Tarkanian, who had posted Review-Journal stories on his website and whom Angle defeated in the Republican primary.

"I've heard this argument before (that failure to pursue a copyright infringement equals an in-kind campaign contribution) but I have never put much stock in it," Eric Goldman, associate professor at the Santa Clara University School of Law and director of the High Tech Law Institute there, told the Las Vegas Sun.

• Some asked if Righthaven had to sue Angle so as not to jeopardize existing cases -- or to be consistent in suing all known copyright infringers. Not likely, one attorney said, noting each lawsuit is ultimately judged on the facts specific to that case.

• Mike Masnick, writing at techdirt.com, noted the irony in that Angle earlier this year demanded Democrats take down a website she said infringed on her own copyrights.

"So, it's not as if Angle is any sort of champion for smarter copyright lawsuits," Masnick wrote. "I've seen some people think that, because of this lawsuit by Righthaven, if she gets elected, perhaps she'll speak up for better copyright laws, but that seems unlikely. Still, it is somewhat ironic that she was claiming copyright infringement by (Sen. Harry) Reid, while at the very same time, taking chunks of the Las Vegas Review-Journal -- especially since Righthaven's lawsuits were already ongoing at that point."

"Still, with a lawsuit against someone so high profile, perhaps it will get more people paying attention to just how ridiculous Righthaven's lawsuits have become," Masnick wrote.

• Another frequent Righthaven critic, Wendy Davis at MediaPost.com, argued that while the Review-Journal has argued the copyright lawsuits are necessary to protect newspapers' revenue, Review-Journal Publisher Sherman Frederick "has yet to offer any evidence showing that newspapers have lost revenue due to the alleged piracy."

• Evan Brown, a technology and intellectual property attorney in Chicago, on his Internet Cases blog likened the Righthaven litigation to "spamigation" -- defined as lawsuits filed in bulk to intimidate large numbers of people into settling.

Brown was particularly critical of Righthaven's standard lawsuit demand that Angle's website domain name be forfeited and transferred to the control of Righthaven.

"Say what?" Brown wrote, saying this demand "demonstrates a plaintiff mindset that is over the top on just about any reasonable scale."

Brown wrote there's no basis in the federal Copyright Act for a plaintiff to obtain a defendant's domain name and suggested Righthaven's tactics are "silly" and "in some cases uncalled-for."

Righthaven CEO Steven Gibson, a Las Vegas attorney, has said defendants' website domain names are an asset that Righthaven could seize should the defendant refuse to stop infringing or lack financial resources to pay a judgment.

Critics, though, have said the threat that domain names be forfeited is part of Righthaven's tactic of pressuring website operators and bloggers to settle the Righthaven suits.

• Goldman noted the lawsuit against Angle illustrates that people who should know better are finding themselves caught up in copyright litigation.

"A surprising number of political candidates have been sued for using third-party copyrighted material as part of their campaigns," Goldman said, noting Don Henley of the Eagles sued California Senate candidate Chuck DeVore for using the songs "Boys of Summer" and "All She Wants To Do Is Dance" and that Jackson Browne sued Arizona Sen. John McCain over use of the song "Running on Empty."

"I always find a certain irony when our lawmakers -- who we entrust with the power to set the rules for our society -- struggle with understanding the boundaries of copyright law. If they can't figure it out, how are ordinary citizens supposed to figure it out?" Goldman said.