Righthaven is a company that was formed earlier this year with a novel business model: find websites that have copied newspaper articles without permission, and sue them for copyright infringement. Since March, it has sued more than 150 websites and reached settlements with more than 50. But now Righthaven faces its biggest challenge yet.
In its lawsuits, Righthaven typically asks for attorney’s fees and threatens to take over defendants’ domain names. It has used both of those demands very effectively as a hammer to force its targets to settle the lawsuit. A new motion filed by digital rights group Electronic Frontier Foundation argues that Righthaven doesn’t have the right to demand attorney’s fees or take over defendants’ domains, even if it wins its lawsuits.
Righthaven appears to be the first for-profit effort to file dozens of copyright lawsuits on behalf of newspaper companies. In each lawsuit, it typically demands damages for willful copyright infringement-which can range up to $150,000 per work under U.S. law-as well as attorney’s fees and the forfeiture of the website that hosts the copied article. The settlements it has reached are confidential, but they have ranged from $2,185 to $5,000, according to the Las Vegas Sun.
Righthaven’s founder, Las Vegas lawyer Steve Gibson, says his business model is a sensible way for newspapers to fight against an ocean of infringements of copyrights that have gone unaddressed.” But Righthaven’s “sue first” business model has been criticized, especially since the lawsuits have mostly been filed against individual bloggers and not-for-profit websites.
The heavy damages for copyright infringement have surely helped Righthaven collect quick settlement money. But the company’s style of making big demands and then accepting quick settlements have also led critics, like EFF, to call Righthaven a “copyright troll” with shakedown-like lawsuits.
In the motion, EFF argues that transfer of a domain name is a remedy that is simply not allowed under copyright law. Writing the motion on behalf of their second Righthaven client, Thomas DiBiase, a blogger who writes about murder cases, EFF argues that “the remedy of domain-name seizure… would violate Mr. DiBiase’s First Amendment rights.” The great majority of DiBiase’s site isn’t even accused of copyright infringement, and “because it would cut off public access to Mr. DiBiase’s speech, a domain-name transfer order would be massively overbroad and unconstitutional.”
The second point: Righthaven shouldn’t be allowed to collect attorney’s fees. Unlike domain-name transfer, attorney’s fees are a common award for successful copyright plaintiffs. But because “Righthaven is a made-for-litigation entity that was set up and is run by the very lawyers who are prosecuting cases on its behalf,” EFF argues that the company should be ineligible for such awards.
Righthaven started off enforcing copyrights it acquired from Stephens Media, the parent company of the Las Vegas Review-Journal, which owns a part of the company. Recently, the company also has signed up an Arkansas newspaper chain, WEHCO Media, owner of the Arkansas Democrat-Gazette, as a client. Righthaven has declined to talk about the financial terms of the deals it strikes with newspaper publishers.
EFF says it has been inundated with requests for help from Righthaven defendants. Right now, the group is representing two. In addition to DiBiase, EFF represents Democratic Underground, a liberal political news site, which was sued for using a five-sentence excerpt of a Review Journal article. DiBiase, on the other hand, was accused of copying an entire R-J article for his site. EFF has said that DiBiase’s use of the R-J article still constitutes fair use because it was non-commercial and transformative in nature.