The Media Bloggers Association, of which I am a longterm member, has filed an amicus brief in Righthaven LLC v. Hyatt, one in a series of suits by a company which exists for the sole purpose of suing bloggers.
Righthaven is a Nevada LLC (hereinafter, “Righthaven”) with the most questionable of business models. It was formed by an attorney who, instead of simply representing copyright plaintiffs in justifiable cases, chose to create an entirely champertous enterprise out of unsound copyright claims. Its “business model” is to seek out unwitting and, perhaps, careless bloggers who have used portions of the Las Vegas Review Journal in online discussions. Once Righthaven finds these uses by conducting internet “sweeps,” it fallaciously “acquires” the rights to the articles in question, essentially as causes of action, solely for the purpose of filing a lawsuit.
The vast majority of the victims of this scheme are under the impression that by giving proper attribution to a source, they are within their rights to use such excerpts. Almost none of them could ever afford legal representation; flummoxed by the threat of a $150,000 potential statutory damage award – an amount that it can safely be said none of them could dream of satisfying – and lacking even a clue as to whom to turn to for advice, many will simply default.
Righthaven now seeks to turn a default into a windfall by asking this Court to grant it a constitutionally impermissible and outrageous award of at least $30,000 in statutory damages, ranging up to $150,000.00 in this matter, in addition to $1,850.00 in costs and attorney’s fees – all based on specious infringement claims for forgotten newspaper articles whose economic value is surely orders of magnitude below these astronomical sums.
While bloggers operate under Fair Use principles, there’s little doubt that some of us cross the line on occasion. Partly, that’s because the line is far from bright. Mostly, it’s because people mistakenly think everything on the Internet is in the public domain.
I’ve been blogging for a little over eight years now and have written 21,594 posts on OTB alone over that time. I’ve received less than a half dozen complaints about copyright claims, all of which were resolved amicably and speedily. (I was also erroneously included in a lawsuit involving a blog with which I’m only tangentially affiliated and had that dismissed — with the help of Ron Coleman.)
Having one’s copyrighted materials misappropriated is frustrating and, in some cases, actionable. But the remedy for a small website is almost always a DMCA takedown notice, not a lawsuit. But, as the MBA amicus alleges, Righthaven isn’t interested in protecting intellectual property rights but in scaring people into coughing up money.
The entire brief is below:
