Bryan Goodwin's blog

Do you blog? Tweet? Tumble? Have you ever reposted someone else’s work in your constant quest to please your audience? Perhaps you found an article particularly provocative, and you just had to share it with the world (or at least your ninety blog subscribers), so you threw it up on your site. No big deal, right?

Well, maybe or maybe not. Imagine the following scenario—a person finds a news article they like and posts the entire article as a comment on their website. Imagine then that the newspaper that created the original article had sort of sold its copyright to a group (let’s call this group “©”) whose sole function was to pursue people who infringed on the newspaper’s content by making demands and settling or suing them. Is © a knight in shining armor protecting against the unscrupulous lifting of intellectual property, or is © a “copyright troll” (a named derived from “patent troll,” which is an unfavorable moniker for parties who collect patents with no intention of actually using them for business purposes) wreaking havoc with the principles of fair use by extracting settlements from those who cannot afford to properly defend themselves?

The answer to that question may depend upon whether you are the owner or the borrower of the content but there are indications that the statutory damages available under copyright law (currently anywhere from $750 to $150,000 per infringement depending upon the circumstances) have attracted the attention of not only the copyright owners themselves (such as image sites and the photographers who supply them) but also third parties who have no apparent business interest other than pursuing settlements and recovering statutory damages. One example of such a third party is a group named Righthaven, which purchased copyrights from newspapers and then searched the Internet looking for infringers. By various estimates, Righthaven has filed over two hundred infringement suits with an unknown number of settlements.

Righthaven’s approach has not been without challenge, and the company has recently suffered a series of legal setbacks with some defendants successfully challenging its “standing” (or right to sue) in such cases as Righthaven, LLC v. Hoeh, Righthaven, LLC v. NewsBlaze LLC  and Righthaven, LLC v. DiBiase. The DiBiase case also resulted in the award of over $110,000 in legal fees and costs against Righthaven, which has led some observers to question whether the company will be able to weather its own legal challenges. 

Such musings about Righthaven’s future, while relevant in the short term, tend to miss the larger point: existing copyright laws and the potentially significant statutory damages for infringement (which can far exceed any actual damages), absent congressional action, will continue to incentivize third-party Righthaven-style ventures. The Righthaven cases could therefore actually strengthen the third-party model over the long run by providing a blueprint on how other third parties should structure their own entities and copyright purchases going forward.

Despite Righthaven’s current efforts, if the right factors are present, fair use currently remains a significant defense to infringement claims. The entrance, however, of copyright trolls (or copyright knights, depending upon your vantage point) into the fray, coupled with some copyright owners using Internet web crawlers and other search technologies to find instances of infringement, continues to underscore that fair-use assessments should be considered carefully—and preferably with the assistance of your copyright counsel.