Copyright Shakedowns

Dan Frosch at the New York Times has a great article about a Nevada company that is going after copyright violators very, very aggressively.

The company, Righthaven, is picking up the copyrights to work from a couple of news organizations and then scouring the web looking for illegal usage of those images and stories. Without warning, they are filing lawsuits against alleged infringers.

Now, I am not a fan of overzealous lawyers but as I guy who truly believes in copyright protections, I think I’m going to side with the lawyers here. If they have legally obtained the copyrights to these works, then they have the legal authority to protect them – and the way the law is written, that means filing lawsuits.

Some will contend that “fair use” protects them and allows them to use the work. From the U.S. Copyright Office’s web site:

One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of 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

  4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

From my observations as a non-legal scholar, the vast majority of uses don’t fit all of those criteria. Yep – ALL. It’s not just one, you need to clear all of those in order for it to be considered for “fair use.”

The ignorance of copyright law is pretty stunning out there. From the Times:

“My reaction was, ‘Why didn’t you just contact me and ask me to take it down?’ That would have been no problem,” said Ms. (Rachel) Bjorklund, who plans to challenge the suit.

Ms. Bjorklund’s defense seems to be it’s only a problem if she gets caught. Which she did. And then she’ll take it down. That puts the burden of the law on those who it is supposed to defend. It means the victim has to take full responsibility for enforcing the law.

Imagine you own a candy store. People come in daily, choose their candy and come to the front counter to pay for it. You have a good business.

But every now and then, you have someone who comes in, pockets your candy and walks out the door. Is it your responsibility to track them down and have them return the candy – candy they’ve already probably used? Has the value of the candy been diminished?

How easily can you sell a candy bar that’s been opened and used by someone else? What value does it have?

Yeah, see – returning the candy bar has decreased its value. Running someone else’s work without their permission decreases the value of it.

Which, you know, is theft.

(Thanks to Prof. Barry Hollander for the tip on this story.)

Mark E. Johnson

3 Responses

  1. I have real mixed feelings about this development, Mark.

    On one hand, I applaud attempts to enforce copyright law. It’s a tough time to be a photographer working in the publishing biz. It makes infringement a double-whammy, where it harms both creator and employer. And I agree that lack of knowledge is not an excuse for misappropriation. Better education of the general public in these matters is way past due. If the present course is maintained, it may become financially impractical to make a living by producing creative and intellectual works in the future.

    What’s not clear in this article, however, is whether or not there was an actual transfer of copyright from these media companies to Righthaven. Is Righthaven simply pursuing legal action on behalf of these media companies for a fee? Or has there been a partial transfer of rights in order to pursue legal action? Or was there an outright transfer of rights for a fee? It’s not clear, and that is an absolutely crucial point in this matter.

    If there was indeed a transfer of copyright, this extremely disturbing to me. And, in the long run, I don’t believe this practice is truly a service to creative types hoping to protect their intellectual rights, or to the audiences who benefit from such works.

    First, if it’s true, newspapers selling their copyrights to third parties sounds more like a thinly veiled attempt to produce an additional revenue stream rather than an attempt to protect on-line content, despite what representatives of the media companies say in this article. It has all the trappings of another desperate move to replace lost advertising income. Another short-sighted strategy which could ultimately hasten the demise of the news industry, not stave it off.

    Second, are we to believe that a company like Righthaven really gives a flip about protecting intellectual rights? It’s more appears likely they are primarily interested in turning a quick profit rather than taking a legal and moral stand against misappropriation. Their mode of operation is alarmingly similar to debt-buying companies who purchase bad debts from banks for pennies on the dollar, then sue debtors for the full amount, counting on fear and ignorance to produce a quick settlement.

    Copyright law is already convoluted and poorly understood. However, I fear that this kind of practice will only produce backlash. From a confused public. And from legislators already trying to dilute copyright protections with proposals like the Orphan Works Act.

    And what of the First Amendment protections presently afforded to news content? News content is protected by the First Amendment because of its value to society. Can news content continue to enjoy that protection in the courts if it is peddled around like bad credit card debts?

    Just like folks should pay their debts, folks should respect copyright law. But this form of enforcement is just as distasteful as that of the debt-buying industry, where greed supersedes principal. Where the profit of a disinterested party replaces a mutually beneficial relationship.

    I’m on board with folks searching for ways to continue making a living in writing, art, photography, music, etc. But I fear this cure could end up being worse than the ailment.

    Am I overreacting?

  2. I think those are some valued concerns, Scott. But I also thing we’ve spend years trying to educate the public with quiet notices and it hasn’t worked. The explosion of online blogging has multiplied the number of instances of copyright violations and diminished the value of the original content significantly.

    I don’t foresee and conflicts between First Amendment rights and copyright suits – the Constitution says nothing about business, only the right to participate freely in this particular business enterprise. If the courts want to pursue this angle, then it seems obvious if they’re to protect the value to society they also need to protect the financial structure that enables the production of the work.

    Is it distasteful? Yep. Some background reading on Righthaven confirms suspicions that they only take over the rights to specific works for which there have been violations – they only exist to go after violators. They only exist to go after people who have broken the law.

    And, well, I don’t really have a problem with that.

  3. I understand part of the need to go after copyright infringers is to maintain the value of the created works. And believe me, I’m painfully aware of the need to support some kind of financial structure that enables the production of this kind of work.

    But this arrangement seems to benefit only a third party whose only incentive is profit.

    The courts are already swamped with debt-buyer suits. This kind of copyright suit appears so similar, I doubt judges will welcome the additional workload. I’m inclined to believe, based on cultural observations, that this kind of enforcement will ultimately result in an expansion of the definition for “Fair Use” in the courts before it has the chance to become a wide-scale deterrent to copyright infringers.

    I wish I had a better solution to the problem, but I’m pretty sure this isn’t it.

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