Combating Copyright Infringement: Litigation Is Not the Only Option

Lora Bentley

Last week I wrote about Righthaven. The company's business model revolves around filing copyright infringement suits against bloggers and other publications that have allegedly lifted content from newspapers such as the Las Vegas Review-Journal and The Denver Post without permission. As The New York Times explained earlier this month:

[T]he way it works is simple: Righthaven finds newspaper material that has been republished on the Web - usually an article, excerpts or a photograph - and obtains the copyrights. Then, the company sues.

The Copyright Act of 1976, as amended, grants the creator of original literary and graphic works (and other types of works not relevant here) exclusive rights, including the right to display the works publicly, the right to reproduce the works and the right to create derivative works from the original. The law also allows those rights, or any combination thereof, to be assigned to other parties for a variety of reasons and durations.


Moreover, the act allows copyright holders to seek injunctions against infringement as well as other legal remedies, so Righthaven's suits, at first blush anyway, should be legitimate causes of action.


Yet many have called Righthaven a "copyright troll." Why? There are several reasons, really. First, it appears that the company specifically targets individual bloggers, nonprofits and small businesses that more than likely will settle out of court to avoid paying legal fees. Second, it often files the lawsuits first, without adequate notice and without pursuing other available remedies (takedown requests, licensing agreements).

But what I find most perplexing is why Righthaven has to obtain the rights to the works in question and sue in its own name rather than suing on behalf of the newspapers. For that matter, why does Righthaven need to be involved at all? Why can't the newspapers' legal departments take the cases in hand and deal with them that way?

Recent revelations have brought the validity of Righthaven's assigned rights into question. Turns out the company may not have standing to bring the suits in the first place. As such, it seems the newspapers would be saving time and money - not to mention a lot of bad press - if they skipped the middleman altogether.


But short of filing suit, what can the newspapers and other publications like them do to protect their content? As several Righthaven defendants have indicated, it may be as simple as asking the offender to take down the lifted material or to give proper credit to those who created the work and/or legitimately hold the copyrights.


If the simple email or letter doesn't yield the desired results, they can also make formal Digital Millennium Copyright Act takedown requests of Google, Yahoo, Bing and other search engines so that the offender's infringing work does not appear in search results, or ask the offender's Web host to remove the infringing material. (Though the DMCA limits the liability of service providers that transmit or link to infringing material created by a third party, it does require the service providers to remove the infringing material upon request of the copyright holder.)


It's work, but if the content is valuable enough that the publication is paying someone to create it, then it's work well worth the effort.

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Add Comment      Leave a comment on this blog post
May 12, 2011 1:35 PM Ken Ken  says:

The reason why Righthaven takes the copyright and not simply represent the papers in question is one, they are not a law firm, second this allows Stephens Media to mount questionable lawsuits without incurring the expenses and the liability themselves. This of course is not happening since they have been dragged into the lawsuits themselves.

Righthaven says that take down notices are not required under the law and in that they are correct however not sending out notices have proven to be a problem in court because judges are not impressed that no attempt to mitigate the problem was pursued before they filed litigation so even though take down notices are not required they are still the best way to get people to take down any infringing material as well as the strength it gives your case if the website refuses.


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