copyright question

Dear Dr. C,

I heard that a copyright troll died recently…what’s the scoop?

Morbidly Interested

Dear Morbidly,

Righthaven LLC is a company that has brought hundreds of law suits for copyright infringement against web sites, bloggers, and mainstream media companies that have used content from the Las Vegas Review Journal.  Quotations as small as one sentence, even when properly attributed to the Review-Journal, have brought demands for payment and federal suit from Righthaven, which alleged that it owned the rights to the paper’s morgue (archive of past issues.)  Reportedly, Righthaven has received payments to settle these suits that total several hundred thousand dollars.

In a legal counterattack, Democratic Underground, a target of a copyright claim by Righthaven, used discovery to gain access to the agreement between the newspaper publisher and Righthaven.  (Righthaven LLC v. Democratic Underground LLC, Civ. Action No. 2:10-cv-01356, D. Nevada.)  That agreement granted Righthaven LLC only the right to sue, but not ownership of the copyrighted works.  United States District Judge Roger Hunt ordered publication of the agreement, and those that have been sued by Righthaven have now been given the tool to bludgeon the troll.  You see, under existing law, having a bare right to sue is not sufficient basis for standing before the court, and each defendant may now move to have cases dismissed on that ground.  Expect to see a LOT of motions filed.

This leaves the fundamental question of what constitutes fair use of a newspaper’s content in today’s digital world.  Is it sufficient to include the link (URL) with the text of the story posted or emailed?  Is it permissible only to post the link itself?  Is there some middle ground?  Unfortunately, Congress was very vague about what would be considered “fair use” when it wrote the Copyright Statute, and our courts have not provided much precision in the more than thirty years since.  This important question must be answered, but it may take many more cases, at great cost in time and expense, before we have a workable and consistent answer.  For now, the safe course is to quote only a few sentences, at most, and provide a reader with the opportunity to view the original article using a link (such as, “To read the rest, click here…”)

Is Righthaven LLC totally out of business?  Not yet, and our guess is that they will come up with a new agreement and be back in court before the ink is dry.  Word to the wise: quote carefully, and if at all possible, do not quote that paragon of journalistic excellence, the Las Vegas Review Journal.

— Lawrence Husick, Esq.