Observers note uncertainty over future of Righthaven/R-J copyright suits

Sun archives

Editor's note: The coverage of the future of the Righthaven lawsuits in this story is from Tuesday's broadcast of KNPR’s State of Nevada, which airs on News 88.9 KNPR. The guests were interviewed by host Dave Becker. The Righthaven discussion is archived here.

Plenty of unanswered questions remain about the Las Vegas Review-Journal's online copyright infringement lawsuit campaign, observers said during a radio news discussion Tuesday.

The Review-Journal's owner, Stephens Media LLC, has invested in Righthaven LLC, a Las Vegas company that detects online infringements to Review-Journal stories, obtains copyrights to those stories and then sues website operators over the unauthorized postings on a retroactive basis.

The lawsuit campaign has attracted international attention and is of special interest in media and intellectual property legal circles -- largely because it's a departure from the usual newspaper industry practice of asking or demanding that website operators remove infringing material and/or replace the material with links to the source material.

The Review-Journal and Righthaven say the lawsuits are aimed at deterring copyright infringements, but defense attorneys and critics call the initiative a shakedown campaign against, typically, individuals, small-time websites and nonprofits.

While typically demanding $75,000 or more recently $150,000 in its suits, Righthaven often settles for a few thousand dollars -- often making it easier for defendants to settle than to hire attorneys to litigate against Righthaven.

Speaking Tuesday on KNPR Nevada Public Radio, Las Vegas freelance writer Steve Friess said he's supportive of legal efforts to stop copyright infringement because he's regularly seen his own material reposted without authorization -- reducing the value of those stories to him.

But Friess said it's unclear if the Review-Journal and Righthaven are truly working to stop copyright infringement -- or if they're looking to earn money with the lawsuits since, he said, the Review-Journal hasn't taken steps on its website to educate readers about how they can properly use Review-Journal material online.

"One of the things I have not seen on the Review-Journal website is any information about this," Friess said. "You'd think if they weren't just looking for money they would post a warning."

"Now I'm a little confused about what they're trying to do," he said.

The Review-Journal/Righthaven litigation strategy has been covered by the Review-Journal in a story on a Righthaven lawsuit against U.S. Senate candidate Sharron Angle and in blogs by Publisher Sherman Frederick.

Eric Goldman, associate professor at California's Santa Clara University School of Law and director of the High Tech Law Institute there, said he doubted the litigation strategy would be profitable in the long run as more defendants organize and fight back, increasingly keeping Righthaven attorneys busy researching and writing legal briefs and making court appearances.

Goldman noted that once federal judges or juries get around to deciding damages in the contested cases, the typical Righthaven demand of $75,000 or $150,000 could be slashed to awards of just $200 or $750.

"The business model assumes they're going to get quick settlements from a majority of the cases. Because of their (Righthaven's) tactics, defendants are organizing. ... The more defendants that choose to fight, it makes it harder for Righthaven."

Of the potential judgments as low as $200 for so-called innocent infringers, Goldman said: "If that's the pot of gold at the end of the rainbow, the money isn't going to be there" for Righthaven to be profitable.

But Peter Menell, professor of law and director of UC Berkeley University's Center for Law & Technology, said some of the copyright lawsuits could be decided on summary judgment motions -- meaning there are no expenses for a trial.

Even at trial, juries could be sympathetic to Righthaven as one was in a copyright infringement case involving a Boston University student hit with a $675,000 judgment last year for unauthorized music file downloading and sharing -- though that amount was slashed by a federal judge to $67,500.

Menell noted Righthaven is claiming statutory damages and attorneys fees.

With statutory damages -- which don't require a showing of economic loss and which Righthaven says are in place as a deterrent to copyright infringement -- there's not as much legal work as in proving actual economic damages.

"You might be able to make it work," Menell said of the Righthaven business model.

But Goldman said if Righthaven is "trying to clean up the Internet, there's a much more cost-effective way to do that."

That would be for Righthaven and the Review-Journal to ask or demand that infringing material be taken down, which many Righthaven defendants have said they would have done if they had received such a request. But Righthaven has argued it's not cost-effective for newspapers to send such requests given the huge numbers of infringing websites.

Colleen Lynn of Austin, Texas, runs the nonprofit organization seeking limits on dangerous dogs. She also crusades against Righthaven with her website, and said she was terrified when she learned of the Righthaven lawsuits and immediately moved to remove Review-Journal material from her website.

Lynn, who uses news stories from around the country to document dog attacks so policy makers, the media and others have access to the information, hasn't been sued by Righthaven.

But she took issue with the Review-Journal calling individuals and groups like she's involved with content thieves.

"This whole idea of calling groups like ours criminals and thieves is un-American," she said.

Lynn acknowledges that in the past she didn't ask for permission to archive news stories from the Review-Journal and other news sources. Numerous other nonprofits have said in response to Righthaven that they too archived thousands of stories from around the country for years with no objections until Righthaven came along.

A big reason for archiving the information, Lynn said, was that newspaper links sometimes disappear after a few months.

Lynn, in response to Righthaven, said she's now found a service that will allow her access to the required news archives without putting her in jeopardy of a copyright infringement lawsuit.

Menell noted that the backdrop of the situation is that the newspaper industry and journalism in general have suffered during the Internet era because of a lack of advertising support for online news content.

He said there are ways for people to avoid becoming copyright infringers by simply channeling website users back to the journalism sources that produce the material at issue.

The most common such method, encouraged by the Las Vegas Sun and many other newspapers, is for website operators to post links with at most the first paragraph or a few sentences rather than entire stories.

Separately, Righthaven filed two more copyright infringement lawsuits on Monday in U.S. District Court in Las Vegas -- bringing to 131 the number of lawsuits it has filed in that court since March alleging online infringements of Stephens Media LLC stories -- mostly stories from the Review-Journal.

The latest defendants are:

-- EMP Media Inc. and three individuals Righthaven says are associated with the company: Neil Infante, Shad Applegate and Burak Baskan. Righthaven says EMP is a Nevada company that has a website called

The website offers reviews on massage parlors around the world to paying subscribers. The defendants are accused of displaying on the site a July 21 Review-Journal story about the closure of a Las Vegas massage business because of prostitution arrests there.

It's unclear if the story was posted by one or more of the defendants or by a message-board user.

Full credit to the Review-Journal and a link to the Review-Journal website were included with the post on, court records show.

-- Donald K. Schultz and Travis Nagle, whom Righthaven says are associated with the website, where someone allegedly posted a July 29 Review-Journal story about Sen. Harry Reid participating in an energy summit at UNLV.

Full credit and a link were provided to the Review-Journal for the story on the donatdawn website, which covers energy and environmental issues.

Schultz says on the website he worked at the California Energy Commission and the California Public Utilities Commission (CPUC) and that he retired in 2008 from the CPUC’s Division of Ratepayer Advocates.

As in all the recent Righthaven cases, the company in both lawsuits seeks damages of $150,000 apiece and forfeiture of the defendants' website domain names.

In its usual boilerplate lawsuit language, Righthaven charged in both cases: "The defendants displayed, and continue to display, the infringement on the website. The defendants did not seek permission, in any manner, to reproduce, display, or otherwise exploit the work (stories). The defendants were not granted permission, in any manner, to reproduce, display, or otherwise exploit the work."

Requests for comment were placed with the defendants.