Patent Law

Can Media Owners Save Themselves By Blaming Others?

By Mary Zachar

Ken Cloke in his book Mediating Dangerously asks: how can we transform conflict so other options emerge that do not require winners and losers? As mediators, we are asked to guide people through conflicts, shedding light so they can see and as a result move towards more creative and productive ways to conduct their personal and business affairs. As I blog on another litigation scheme designed to 'save' a right's based culture by monetizing infringement, what appears is just another version of lawyers fomenting schemes, and an industry grasping for rescue rather than creating new ways of serving its consumer.

Infringement => $$$

Here's the newest copyright scheme to monetize infringement. David Kravets' July 22 blog post over at Wired.com reports that Righthaven LLC, a Las Vegas company associated with Review-Journal owner Stephens Media LLC, as represented by lawyer-entrepreneur Steve Gibson, has executed a new litigation strategy designed to save ' the media world's financial crisis.' Gibson, predicting that millions of additional infringements will yield revenue as his business plan expands in scope to capture the massive online infringements of media clients' rights in their content, is optimistic:

Gibson's vision is to monetize news content on the back-end, by scouring the internet for infringing copies of his client's articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven's formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who've re-posted articles from the Las Vegas Review-Journal, his first client. Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he's making money. We believe it's the best solution out there,' Gibson says. 'Media companies' assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.'

It appears that the scheme is in service to online-media owners against those who re-post or excerpt their content – websites and bloggers, not wholesale aggregators. Because the law with respect to online excerpting of media content is based mainly on Fair Use which is explicated on a case-by-case basis, uncertainty in the strength of the claims exists. There is no clear admission in these cases of copyright infringement (as may arguably exist with illegal filesharing of entertainment media) even though there may be use of another's content without permission. The law is not entirely in the content owner's favor.  The Copyright Office website cautions:

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. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: 'quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.' 

Instead of asking what are users' expectations in the digital culture and how might publishers and authors meet them and adapt, content owners are asserting rights rather than interests, ignoring that the very business model from which these content owners derive their rights is based on two pillars of constitutional dimension, free speech and copyright, both equally designed to serve the consumer market and also anchored in democratic ideals.  In commodifying its copyrights to monetize infringement, media owners and their attorneys seem to overlook the vitality of digital content and the fact that digital content also acts as a vehicle through which individuals 'speak' – communicate – in exercise of their 1st Amendment rights.

Can this strategy lead to Self-Censorship? 

Unlike a song or film copied and distributed online through filesharing, Righthaven brings complaints for posting in many cases excerpts of articles even though linked to the complete article with attribution - news content shared on sites not to consume as entertainment, but as information, not for its expression, but rather its currency. The chilling effect of this new litigation strategy is that it is designed to impose self-censorship, sending a message to potential infringers unable to bear the costs of litigation, that they dare not exercise their rights to repost excerpts of content, which in many cases would otherwise be fair use, one of the copyright safeguards to preservation of free speech.

Copyright and 1st Amendment coexist because, as our Supreme Court articulated in Eldred v. Ashcroft, 'copyright's built-in free speech safeguards are generally adequate to address any conflict with free speech rights.' If linking to and reposting excerpts of online content is our cultural currency –and linking and attribution the tool which allows the flow of information and communication - what might an industry which is itself built on free speech and fair use do to address copyright infringement? Is the result of a litigation strategy designed to lock up online content the preservation of a market monopoly, or is it that plus a monopoly over our cultural currency?

Media owners have an exalted status with respect to content (e.g. 'hot news' as reported by Mike Masnick and Kevin Smith), and are treated more deferentially than other speakers. First Amendment and free speech are the driving force of media law. To assert as Gibson does that copyright is a media company's core asset is to see 1st Amendment and copyright as separate rather than as twin pillars supporting the industry. When it sues its own consumer, and will even sue its content's interviewee who has reposted, a dysfunction arises.

Copyright, a limited monopoly, cannot and does not lock up facts, opinions, ideas, or unprotectible content, and media companies' attempt to monetize online infringement risks disrupting the twin pillars on which it bases its own survival. Online content cannot be treated as a static commodity - the digitization of information and its use on the web is not static but rather like search engines, a pointer to a flow of ever changing content transforming its static nature to process, movement creating more content, educating more consumers, transforming yesterday's news to today's pointer.

Freedom of speech depends on a vast public domain. Most consumers see excerpting and linking as essential to dialog in today's marketplace. A new Facebook Page "stop the LVRJ/RIGHTHAVEN witch hunt! (may have to be logged in to FB to see it) is an online dialog about Righthaven, resulting in a black list of its media clients. Is this the way to save media from its financial crisis? Where is the bigger view which sees the creativity in mutually beneficial indexes and roadmaps?

The internet has completely changed the outcome of a copyright holders' right to prohibit and restrict copying and distribution of copyrighted works for essentially non-commercial purposes. Assertion of these rights is based on the assumption that the use of copyrighted content is static. Robert Chender's July 11 Contemplative Law post asks: what if the legal framework under which we assert legal rights is based on an incorrect assumption and yet is constitutionally permissible? Media owners might ask themselves this same question. The digital 'free' culture has proven that a right's based assumption no longer serves the consumer who uses content to communicate, dialog, connect, and create new uses of content. If an industry fails to serve its consumer, how can that be a means out of a financial crisis? Rather than using new technology to entrap users, technology could be used to discover ways to enhance the uses, capture new value and generate a more vital marketplace – actually, the goal of both copyright and the 1st Amendment. Wouldn't that be cool?

Citizen's Media law project has posted a copy of one of the complaints here. Additional links to complaints offered here.

How can we learn more about this?

Here are two great articles by Steve Green with the Las Vegas Sun, updating issues involved in this strategy to save the media, from August 9 and August 4.  

As these articles suggest, one of the issues to emerge in this dispute is the implication of the DMCA take down provisions with respect to third party content and the

essential step some websites and bloggers may have skipped in order to fall under the safe-harbor provisions (e.g., registering designated agent with the Copyright Office). Note also that Professor Eric Johnson at Blog Law Blog is tracking this story and provides good updates as well as the back-story on the Righthaven cases. There is also an interesting podcast here by Robert Ambrogli on the extent that a blogger can use content of a news story without attribution.

-MZ

Full post as published by IP ADR Blog on August 13, 2010 (boomark / email).