Consumer group offers help to defendants over R-J copyright suits
By Steve Green
Published Wed, Aug 25, 2010 (9:26 a.m.)
Updated 1 hour, 41 minutes ago
The Electronic Frontier Foundation, an influential group that works to promote freedom of speech and consumer rights on the Internet nationwide, announced Wednesday it will try to help some of the defendants that have been sued by Righthaven LLC of Las Vegas for posting material online from the Las Vegas Review-Journal.
The EFF, based in San Francisco, since 1990 has intervened in lawsuits and Congress to protect consumer privacy rights and online freedom of speech in the digital age.
For instance, it recently teamed with the ACLU in successfully arguing federal agents don't have unlimited rights to install Global Positioning System location-tracking devices in vehicles without a warrant, and the EFF has assisted individuals targeted in mass lawsuits over the unauthorized downloading of movies and music.
The EFF called a recent series of lawsuits filed by the U.S. Copyright Group over movie downloads, implicating more than 14,000 people, "predatory copyright infringement lawsuits" aimed at shaking out "settlements from ordinary people with few resources to defend themselves."
Wednesday, the EFF said it is seeking to assist defendants in the "Righthaven copyright troll lawsuits."
"Righthaven, founded in March of 2010, files hundreds of copyright infringement lawsuits on behalf of newspaper publishers against bloggers who make use of news content without permission. To that end, Righthaven searches the Internet for stories and parts of stories from the newspapers that they represent. Once they find content that has been re-published, Righthaven purchases the copyright to the article and sues the owner of the blog," the EFF said.
"Just like the U.S. Copyright Group shakedowns, and the RIAA (Recording Industry Association of America) shakedowns of the recent past, Righthaven relies on the threat of enormous statutory damages associated with the Copyright Act to scare defendants, often individual bloggers operating non-commercial websites, into a quick settlement, reportedly ranging from two to five thousand dollars. The Righthaven lawsuits are of particular concern because they sometimes target the operators of political websites who re-publish newspaper stories, chilling political speech. Righthaven has also targeted the newspaper's source for the very articles allegedly infringed," the statement said.
The EFF said it doesn't have the resources to defend everyone who asks for help in dealing with Righthaven.
"However, if we cannot represent you directly, we will make every effort to put you in touch with attorneys who can," the group said in a note posted for Righthaven defendants.
A request for comment on the EFF announcement was placed Wednesday with Righthaven CEO Steven Gibson, an attorney who also heads the Las Vegas office of the Detroit law firm Dickinson Wright PLLC.
Kurt Opsahl, a senior staff attorney at the EFF, said the organization has been monitoring the Righthaven lawsuits for some time.
"For the newspaper industry, this (Righthaven) is a new twist" in copyright enforcement, he said.
The usual procedure in the newspaper industry has been that when copyright infringements are detected online, newspapers contact the offending website and ask that the material be taken down and replaced with a link.
Opsahl said the EFF has been concerned that the Righthaven initiative may be deterring freedom of speech on the Internet because people who have the right to post some material online under the fair use doctrine may not be doing so, for fear of being sued.
Eric Goldman, associate professor at the Santa Clara University School of Law in California and director of the High Tech Law Institute there, suggested EFF will be a formidable opponent for Righthaven.
"I think the EFF's involvement reinforces that Righthaven's lawsuits jeopardize free speech online," Goldman said. "The EFF's involvement also ensures that more Righthaven defendants will be represented by top-notch lawyers. Righthaven's business model partially depends on being able to get defendants to settle quickly. It becomes a lot more expensive to litigate; and even more to litigate against knowledgeable and skilled attorneys.
"The EFF attorneys are among the best in the business -- they are all rock star litigators -- so Righthaven's costs have just gone way up. Plus, the EFF attorneys know how to litigate cases like these, so Righthaven's probability of winning its lawsuits just went down," Goldman said.
The EFF announcement may offer some encouragement to Righthaven defendants who haven't been able to afford to hire an attorney. In many of the cases, attorneys say, Righthaven's settlement offers make the cases cheaper to settle than to fight.
Ryan Gile, an intellectual property attorney with the Las Vegas law firm Weide & Miller LTD, which has been in contact with some of the Righthaven defendants, said the effectiveness of the EFF's involvement may hinge on how many defendants it's able to help and what criteria it uses to decide which cases to become involved in.
"On the one hand, I think it’s a great development that a well-funded group like EFF is getting involved to help individuals who cannot afford legal representation. On the other hand, barring some kind of legal victory on Righhaven’s legal right to enforce the copyright rights it acquires, the unfortunate fact is that most of these defendants probably did commit copyright infringement under copyright law -- however unintentional and innocent such infringement may have been. Even unintentional infringement can bring a statutory damage award of $200.
"Hopefully, EFF’s efforts can help bring about quick, expedient settlements on behalf of the parties they choose to represent – a settlement amount that such parties can afford to pay if they don’t have to pay any amount to attorneys in legal fees. And for those parties whose use is indeed protected as fair use or by the Digital Millennium Copyright Act, with the EFF’s involvement they will be able to strongly fight back against Righthaven," Gile said.
Las Vegas attorney Michael McCue of the law firm Lewis and Roca LLP, which is representing several Righthaven defendants in settlement talks and litigation, has said options for defendants who can't afford legal assistance include seeking "pro bono," or free, legal assistance from a law firm or public interest group; or they could represent themselves if they are not a corporation.
Other options are to try to negotiate a settlement with Righthaven on their own or they can do nothing and risk a default judgment.
The default judgment option is "very risky," McCue said.
"The default judgment could include an award of damages and attorneys' fees. Righthaven might then record the judgment where the defendant resides and may seek to enforce the judgment by attaching assets and garnishing wages," he said.
McCue reminded website operators that to reduce the potential liability for copyright infringement, they should avoid posting material written by others unless they have written permission.
"Merely providing attribution to the source is not sufficient," he said, adding website operators can also be liable for third-party postings -- the subject of many of the Righthaven lawsuits.
Online service providers to avoid liability must comply with detailed provisions of the federal Digital Millennium Copyright Act. These provisions include designating an agent to receive notifications of alleged infringements and registering that designation with the U.S. Copyright Office, McCue said.
"The online service provider cannot have knowledge of the infringement and cannot be aware of facts or circumstances from which the infringing activity is apparent. The online service provider cannot receive direct financial benefit from the infringing activity. In addition, when receiving notice of an infringement, the online service provider must act expeditiously to take down or block access to the allegedly infringing work," McCue said.
Separately, a group working to control the spread of infections is being sued for copyright infringement by Righthaven after a Review-Journal story was posted on its website.
Righthaven on Tuesday filed suit in U.S. District Court in Las Vegas against the Hepatitis C Support Project of San Francisco and its founder, Alan Franciscus.
Righthaven detects online infringements of Review-Journal stories, obtains copyrights to those stories from the Review-Journal's owner, Stephens Media LLC, and then files suit over the retroactive infringements.
The Hepatitis C Support Project and Franciscus are accused of posting to the group's website, www.hcvadvocate.org, an April 30 Review-Journal story about a woman who lost her lawsuit claiming she was infected with hepatitis C at a Las Vegas hospital.
The suit says the website also allegedly displayed without authorization a June 4 Review-Journal story about the hepatitis outbreak linked to the clinics of Dr. Dipak Desai, though Righthaven isn't seeking damages for that alleged infringement.
Franciscus couldn't immediately be reached for comment on the allegation.
The Hepatitis C Support Project says it was founded by Franciscus in 1997 to address the lack of education, support and services available at that time for people affected by hepatitis c.
"The Hepatitis C Support Project's mission is to provide unbiased information, support and advocacy to all communities affected by HCV (hepatitis c) and HIV/HCV coinfection, including medical providers," the website says.
This is at least the second Righthaven lawsuit over the Review-Journal story about the woman's unsuccessful lawsuit against the Las Vegas hospital.
On June 30, Righthaven sued Fremont, Neb., non-profit Honor Inc., which is associated with the website www.oneandonlycampaign.org. That site educates medical professionals about the One & Only Campaign, promoting "One Syringe Only One Time" to prevent the spread of diseases among patients.
The One & Only Campaign is an initiative led by the Centers for Disease Control and Prevention and the Safe Injection Practices Coalition.
The suit against Honor was settled under undisclosed terms, Righthaven said in court papers Aug. 3.
In both lawsuits, Righthaven demanded $75,000 in damages and forfeiture of the defendants' domain names. Publicly-disclosed settlements in other cases, though, show two defendants paid $2,185 and $5,000, respectively, and were able to keep their website names.
In both of the lawsuits over the hepatitis lawsuit story, court records indicate the entire story was re-posted on the defendants' websites with the Review-Journal credited for the information and a link provided to the Review-Journal website.
Also sued by Righthaven on Tuesday were HerbalScience Ltd., the Himalaya Drug Co. and an official Righthaven says is associated with HerbalScience and Himalaya, Nabeel Manal.
They are accused of posting on a blogsite, http://www.fighthangover.blogspot.com/, a June 5 Review-Journal story about Walgreens deciding to sell alcohol at its Las Vegas stores.
Himalaya says on its website it owns Himalaya Herbal Healthcare, with global headquarters in Bangalore, India, and a U.S. office in Houston.
A message for comment was left with Manal.
These bring to at least 102 the number of lawsuits Righthaven has filed since March.
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