This is from The Electronic Frontier Foundation. I could post the entire article, since EFF grants that right, but I don’t want a huge OP and you can follow the link.
So, who’s legally in the right here? IANAL but this strikes me as abuse of the court system. Righthaven purchases the rights to articles that have already been quoted, then sends a threatening letter in the hopes that their target will settle. They’ve even gone after individual bloggers. A number of their targets have settled rather than risk a $150,000 judgment against them.
By the way, this isn’t a political issue and your opinions on Democratic Underground aren’t relevant. According to Wikipedia they’ve brought suits against both a Ron Paul website and Free Republic.
No interest in this? This case strikes me as being important to open discussion on the internet. If people become afraid to exercise fair use and post short excerpts it could have a chilling effect.
This is hilarious. I don’t understand how the suing model works: What damages has Righthaven sustained, since they just recently purchased the copyright and they make money solely by suing? Are they hoping to get punitive damages? Or just extortion?
Why does the Las Vegas Review-Journal sell them the copyrights? Are they just using Righthaven as their outsourced legal dept? Won’t it mean that people will just stop reading the LVRJ and stop posting references to it? Sounds like shooting themselves in the foot.
Uh oh, I hope they don’t come after me for slander…
It appears that they make money because people settle for smaller amounts rather than going to court and risking a $150,000 judgment. So I suppose you could call it extortion. (All just my OPINION of course.)
I think this may be the first instance where someone has brought a counter suit.
Absent a ruling that the quoting is fair use, Righthaven seems to be on strong legal grounds. They can purchase the copyright and can thus sue for infringement.
No one has stood up to them because of the cost of defending themselves, but if it goes to court, it’s almost certain that taking a small excerpt for commentary purposes would fit under fair use. They’re just hoping no one will call them on it.
Doesn’t the amount have to reflect actual damages? Has Righthaven actually suffered $150,000 worth of damages?
They hadn’t actually suffered any damages till they purchased the right to the article that was previously excerpted. Can you essentially pay to suffer damages and then sue for those damages? This doesn’t seem legitimate to me, especially when they assumed those damages specifically for the purpose of suing.
In copyright cases, the copyright holder can sue for actual damages or can opt for “statutory damages”, an amount fixed by statute (specifically, at 17 USC §504). Statutory damages can range from $750 to $30,000, or up to $150,000 if the court finds that the infringement was done “willfully”.
Part of DU’s and EFF’s defense seems to be the fact that Righthaven did not first contact them and ask them to take down the supposedly infringing material. Is Righthaven required by law to give them this chance first? If not, is this defense simply an attempt to show bad faith?
I think that the defense is rooted in 17 USC §512, specifically 512(c). Under that section, Democratic Underground, as a service provider, is only liable for monetary damages under certain circumstances, one of those being that they must be aware that the infringing material was posted on their site by a user. They are also not liable if they are made aware of the infringement and then act expeditiously to remove or block it. Since they apparently weren’t notified about any infringement before the suit was filed, the argument goes that they aren’t liable, since they were thus denied the opportunity to remove it.
It’s not so much that Righthaven is “required by law” to notify them; there’s just a duty placed on them that, if they want to recover monetary damages from the service provider, they first have to inform the service provider that the infringement is happening. If they don’t do that, they have to show that Democratic Underground had actual knowledge that infringing material was posted on their website, which should be a Sisyphean task.
Sisyphean task indeed. DU is huge and has over 100,000 members. They’ve stated in their counterclaim that they cannot possibly monitor every post. They also state that they do have mechanisms in place (alerts can be sent by readers) for reporting excessive quoting of material, and that they do remove any such violations that come to their attention. (Part of their defense is also that the incident in question was not excessive and that they believe it to be fair use.)
That also state that Stephens Media, the publisher of LVRJ, has a statement on their website stating “we do not and cannot monitor materials transmitted by users or third parties into bulletin boards, chat rooms, and the like.” I’m not sure of the legal impact of that but it does make Stephens Media appear rather hypocritical, at least IMHO.