EFF Helps NoBodyCases.com Fight Righthaven Copyright Suit
The Electronic Frontier Foundation is helping those targeted by so-called “copyright trolls” – people or companies that buy up copyright rights and scour the internet to find and sue alleged infringers. The latest case (Righthaven v. DiBiase) involves a company called Righthaven LLC that purchased the copyright to various articles published in the Las Vegas Review-Journal (R-J). Righthaven sued a website called nobodycases.com, maintained by a former federal prosecutor who tracks murder cases where no body has been found.
One may wonder what’s wrong with this arrangement. Isn’t this just using the market to make defending your copyrights more efficient? A newspaper sells its copyrights to someone who is in a better position to enforce those rights. The new copyright owner finds infringers and sues. In the end, the infringer gets his just deserts, the newspaper gets some money to prop up its sagging sales as well as possible deterrence to other would-be infringers, and the new copyright owner gets a return on his investment. Ignoring any arguments about whether or not pure market forces are the best way to regulate property rights in general, there are at least a couple of reasons why assigning copyright rights to enforcers, as described above, is a bad idea.
First, the new copyright owner has different purposes and incentives with respect to the copyrighted content than does the author or publisher of that content. Of course this may be true in a variety of circumstances where someone assigns his or her copyright. However, in the enforcer scenario, the sole purpose of the copyrighted content for the new owner is as a tool to create money by suing others for copyright infringement.
The news journalist and publisher of the copyrighted content are primarily interested in getting the story to the public. They, of course, also want to get paid for providing this service to the public, but the reason for writing and publishing is not solely to make money. Even to the extent that writing and publishing is for the purpose of making money, that money is based on subscriptions and advertising where the benefits to all are arguably realized. The copyrighted content is a product purchased by subscribers. The author is rewarded, as envisioned by our copyright legal regime, as an incentive to create new works. News journalists and publishers also want recognition for good reporting. They want sway in the local community. They want respect for providing a valuable public service necessary for the operation of a healthy democracy. Additionally, as with many copyrightable works, certain re-printing or distribution for which there is no direct compensation, may enhance the value of the work or otherwise benefit the author (e.g., a teacher making copies of an article for journalism students as an example of good news reporting, or the publisher handing out free papers as a way to encourage people to subscribe). All of these purposes and incentives are properly weighed by a news organization in evaluating when and how to assert copyright claims against others. In many cases, one can envision a news organization moving cautiously when evaluating potential copyright claims. For example, as a beneficiary of our strong free speech protections, a news organization may recognize first amendment rights of others to use quotations and other content from its articles. Or a news organization may be reluctant to sue a local charity for posting one of their articles on its website, out of an understandable fear of negative public reaction to such a lawsuit.
The new owner of the copyrighted content (the “enforcer owner”), however, is not constrained by any of these purposes or incentives. In fact it has an incentive to maximize its profits by suing any possible infringer from which it thinks it can extract any money. Unlike the owner of real property, there is no incentive for this enforcer owner to use the property for its intended purpose. Once purchased, there is no cost to the enforcer owner for merely sitting on the copyright and searching for possible infringers. The owner of real property, on the other hand, is losing money to taxes, upkeep, and the like, when the property is left vacant and unused.
Second, because alleged infringement of copyright involves expression, the right to free expression is implicated. Combined with the incentive to pursue any possible infringers, as described above, and the inexact contours of copyright infringement, this is likely to lead to many cases that improperly squelch speech which is likely to lead to improper self-censorship and chilling of speech.
So have these horribles come to pass? I believe that the answer is “yes.” Let’s look at the facts of the DiBiase case as an example. Thomas A. DiBiase, a former U.S. Assistant Attorney, runs a website at nobodycases.com called “No Body Murder Cases.” He posts information on his website regarding murder cases in the United States where no body has been found. He collects no money through his website, and apparently does not even solicit any business through the website. He has provided consulting to law enforcement in the U.S. and Canada for free. Mr. DiBiase posted on his website an article that was published in the Las Vegas Review-Journal about the conviction and sentencing of a defendant in a murder case where the victim’s body was never found. The article was posted in it’s entirety, including both the name of the author and the publisher, as well as the copyright notice. Righthaven is suing DiBiase for $75,000, which is the maximum statutory damages for copyright infringement. Righthaven is also requesting that DiBiase relinquish the nobodycases.com domain name, when there is no such remedy available in the copyright statutes. I agree with EFF counsel Kurt Opsahl, that seeking the defendant’s domain name is likely part of Righthaven’s strategy to get defendant’s to settle.
Is this likely a case of fair use? Yes. Even though the fact that the entire article was posted weighs against fair use, (the amount and substantiality of the portion used in relation to the copyrighted work as a whole, 17 U.S.C. §107 (3)), every other fair use factor weighs heavily in favor of a finding of fair use (factors (1), (2), and (4) of Section 107). Is it absolutely a clear cut case where Righthaven’s attorneys will be sanctioned for pursuing a frivolous claims? Probably not. Any case that involves the copying of the entire work is likely sufficiently meritorious to avoid sanctions. Also, any case that involves the weighing of fair use factors implicates the amorphous nature of copyright law and is likely sufficiently complicated that considering settling is almost always advisable to avoid an adverse decision and the attorney fee award that typically goes comes with it. So the bottom line is that Righthaven likely has a losing claim, but suing makes economic sense because 1) this is just one of many suits they have filed in hopes of recovering significant statutory damages, and 2) the risk to Mr. DiBiase of having to pay a large money judgment and attorney fee award if he does not settle is significant, if not great.
Is it likely the Las Vegas Review-Journal would not have sued Mr. DiBiase if it had retained its copyright? It is impossible to say, but given the free speech implications and the fact that Mr. DiBiase provided clear attribution to the author and publisher of the article, I doubt the newspaper would jump right to an infringement lawsuit. If I were advising the R-J, I’d likely tell them to commend Mr. DiBaise on the work he does and kindly ask for a link back to their website.
