Righthaven had a major setback recently, after a judge ordered it to pay more than $34,000 in legal fees. We caught up with Righthaven CEO Steve Gibson to ask about the state of his controversial copyright-enforcement business. Gibson says he has confidence in Righthaven’s ability to win on appeal, and that his company will continue to fight content theft that is “plaguing the creative community.”
Righthaven has filed more than 270 copyright lawsuits, mainly against small websites and blogs, asking for thousands of dollars in damages for copying newspaper articles. But the company’s contracts with newspaper companies have come under fire. Righthaven’s two key clients are MediaNews (it has heavily litigated content from the Denver Post) Stephens Media, owner of the Las Vegas Review-Journal.
paidContent: What’s your reaction to this order to pay attorneys’ fees?
The interesting question is, if you look at the briefing by Righthaven’s attorneys, it’s indicated that if there’s no subject matter jurisdiction-the briefing by Righthaven’s attorneys was very clear. In terms of 9th Circuit law… [Hoehn] is not a prevailing party. What I think will be interesting, is what Righthaven’s attorneys will be looking at in terms of addressing those issues. It seemed the briefing was fairly [short] here. As I understand it, there was no oral argument in this case. While I’m not acting as Righthaven’s legal counsel, those are very reasonable positions that Righthaven has staked out.
You also lost this case on fair use grounds as well-it was actually lost on two different grounds.
No, we didn’t [lose on fair use grounds]. (Gibson explained Righthaven’s argument that once the court decided Righthaven didn’t have standing to sue, it no longer had the power against Righthaven on fair use grounds. After that, any discussion by the court of fair use in the Hoehn case was “academic.”)
There have been multiple fair-use findings against Righthaven now. Do you think these rulings are a rebuke to the Righthaven business model?
There are a lot of cases out there, and you’re taking four cases out of hundreds. The fair use analysis is a case-by-case basis. We have several of the cases up on appeal, and we believe those are legitimate appeals. We’ll see what the 9th Circuit has to say. So the answer is, unqualifiedly, no. Even some of the strongest detractors of Righthaven have publicly stated that in one fair use case in particular, where there was 100% taking, it was not in their view consistent with principles of fair use. So it’s a good discussion that’s happening.
Righthaven hasn’t been filing new cases. How is its business doing?
In order to be responsive, we engaged in amendments [to our contract with Stephens Media] that we felt addressed the technical issues. As that gets vetted before the court, that will give us judicial guidance as to the technical features of these agreements-at an optimum level, what the courts would like to see.
There’s no question, we’ve blazed some trails here. We initially drafted the assignment documentation based on the Silvers case. We understand there are some differences of opinion as to whether that provides us with standing, and we’ve been responsive to the courts.
You’ve been calling some defendants copyright thieves, and suggesting they are members of an “infringement community.” But in this case, Wayne Hoehn’s lawyers filed a motion saying that Righthaven is a “bully” that attacked his free speech rights, and saying it should be ordered to pay his $34,000 in legal costs-and the court agreed.
I don’t think Judge Pro was engaged in that kind of unprofessional name calling. Look, the blogosphere and the infringement community obviously is very, very vocal. That doesn’t make them right. They’re a lot more heavily populated than the people who create content. We have continuously attempted to stay above name calling, to take the issues to the courts on an unemotional basis. We believe that ultimately our case will be successful.
Has it been challenging? Has it been difficult? There’s no question. As to the perception that we’re a bully… I guess you could engage in this kind of name-calling. The real question is, is it right for people to take other people’s content? People don’t know the bases on which we’ve settled a good number of our cases. They don’t know how lenient we’ve been. So, they run with name-calling.
This is a political discussion that could potentially merit Congressional treatment, in terms of making the copyright laws where we want them to be. But in terms of where the laws are [now], Righthaven is addressing a serious copyright issue that is plaguing the creative community.