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UPDATE: This post was corrected Dec. 16 after a reader pointed out that Stephens Media, which is connected to Righthaven, does not own the Las Vegas Sun, which has been reporting extensively on the Righthaven lawsuits. Since March, Righthaven has been suing entities that post content from Las Vegas Review-Journal, not the Las Vegas Sun. But the Review-Journal, like the Denver Post, did not report a peep about this, until September, when it published a story about Righthaven suing Senate candidate Sharron Angle for alleged illegal use of Review-Journal articles. The Review Journal ran a second article last week when Righthaven began suing to stop alleged illegal use of Denver Post content. Last week, the Review-Journal ran this article and this blog post. . Still nothing in The Denver Post on this topic. I'm sorry for my error.

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You may have heard about a Las Vegas law firm, called Righthaven, that's buying the copyright to Denver Post content that is allegedly being used illegally, in violation of the Post's fair-use policy, and then suing the alleged violators, typically for $150,000 plus the rights to the offender's domain name.

Or, more likely, you haven't heard about the firm, because shamefully, as far as I can tell, neither it nor its activities have been mentioned at all in the Post. (Please correct me if I'm wrong here.)

But the legal strategy to stop alleged copyright infringement has been comprehensively reported in the Las Vegas Sun, and locally Westword picked it up, as did the Colordo Independent, among others.

On Monday, the Denver Daily News weighed in with the most comprehensive local coverage so far, interviewing the co-founder of Righthaven as well as representatives of some of the blogs and websites that have been sued. Righthaven, with the apparent blessing of the Post, is suing entities large (Drudge Report) and small (lowcountry912.wordpress.com).

I'm glad the Post is trying to protect its content, because I don't buy the argument, nicely summarized today in the Sun, that newspapers are giving away their articles on their websites for free to anyone who wants them.

Still, you have to wonder about the Righthaven approach when you read a quote like this, in the Denver Daily News piece, from Steven Gibson, founder of Righthaven and reflecting comments he's made elsewhere:

"It does not appear that an approach to addressing the infringement of copyrights that is based upon merely sending out takedown letters is a very effective way of dealing with that issue," said Gibson. "There are literally millions, if not billions of infringements out there."

"If a newspaper were to add the requisite staff to identify the infringements, to properly identify the infringers, and spend the time drafting appropriately worded letters, and kindly ask each one of those infringers to stop infringing, it would cost a newspaper an unmanageable amount of money to do that," continued Gibson.

So Righthaven is suing without warning.

I called Righthaven founder Gibson, and he confirmed cease-and-desist letters are not sent because they do not work and the process is too expensive. He said:

Think about it a minute, Jason. You are managing a newspaper's legal department, and you have to go to management to say I need to fund the effort to staff enough people who will have notice of an infringement, then do due diligence to make sure you're sending the letter to the right place, and then draft an appropriate letter, and follow up to make sure that the infringer received the letter because more likely than not you might not receive a response. How long do you wait in order to receive a response? That's a lot more than one minute.

Then let's assume that the receiver [of the letter] takes down their infringement, and says you take it down if you don't sue me. And let's assume there are tens of thousands of infringements out there. And how long does it take you to develop a story? And how much are you being compensated? The newspapers are already financially strapped, and adding the capacity to write people gentle letter to say would you please take down the infringement.

And the other thing is that then the other people who know you are doing it say, ok well, they have another 9,999 letters to go before they get to me, and if all they are going to do is send me a letter saying take it down then there is no real risk to me for posting the infringing content. All they are going to do is ask me to take it down. So, you know, whoop-tee-doo, I'll just post the infringing content and see if they ever get around to writing me a letter.

Well, our experience here in Colorado shows Gibson to be wrong about the deterrent effect of a takedown letter. One measly letter was sent to ColoradoPols, and now you rarely see any of the Post's content in Pols, and there's been nothing close to a violation of the Post's fair-use policy since the letter was sent. Westword admits to being scared, and I'm more careful in my own blog.

But Gibson has a point, no doubt, that the prospect of a no-warning lawsuit is much more frightening than the prospect of receiving a takedown letter. I am ashamed to admit to having used copyrighted content in past lives knowing that a cease-and-desist letter would probably arrive before a lawsuit. Had I expected a lawsuit first, I may not have done broken the law.

He's less convincing about the resources required to send warning letters. I mean, interns could do it. It just doesn't seem that complicated to me, even if it takes a little longer than you might think at first blush. In any case, the fact that Righthaven has reportedly taken in a quarter million dollars from these lawsuits makes you wonder if there's a better way to fund copyright enforcement.

Actually, I'm hoping that the no-warning lawsuits are part of an initial PR strategy that will be abandoned once the word gets out that newspapers are serius about protecting their content.

I thanked Gibson for making himself available to me, and I asked if this was part of a PR strategy to scare the world to stop stealing content. He denied this, saying:

I believe that Righthaven is going to ultimately be recognized as doing the right thing. Money is not everything. And we believe that we are advancing a social purpose, independent of whether there is a deterrent value. We believe that protecting the ownership interest in copyright is an appropriate thing to do and is forward looking, irrespective of the deterrent. And while we are running a for-profit business, we like to believe that the propriety of Righthaven's approach will be proven over time, as issues are more fully addressed by the courts, in both Righthaven cases and otherwise that we will create a greater and broader understanding. That's why I try to make myself available to member of the press....

Let's go back to the basics. Copyright law is in the Constitution. It comes from the Constitution where our forefathers said, we're going to protect inventors and artists, effectively. It's important that at the very founding years of our country that we are going to advance the protection of the people who engage in the creative capacity, such as you. You're going to write this article, and people should respect that. And so all of these folks out there saying, we're attacking people, that's very strange.

Gibson goes further:

Jason: I just think in the spirit of public discourse, which actually a newspaper tries to promote, you try to solve things without this kind of harsh--

Gibson: What's harsh?

Jason: Filing a lawsuit when you could send a letter first.

Gibson: First of all, that presupposes that that's harsh--who is it harsh on? You don't factor in the fact that we have $350 filing fees, we have $100 more of service and process fees on these defendants. So, you know, the plaintiff in these cases, Righthaven, has to expend hundreds of dollars, and arguably thousands of dollars, there are copyright registration fees and application fees. We put our money where our mouth is, if you will. This isn't easy or inexpensive.

And, again, the question is have takedown letters succeeded in addressing the infringements. Can anyone argue in all of these blogospheres that the takedown approach will ever be successful in stemming the tide in infringement?

Jason, here's a fantastic story for you, because your approach to this has been a bit more balanced and objective and you're generally asking some good questions. Think about the future of the American economy. Think about 20 or 30 years from now. Think about the evolution of the American economy. Think about where value is going to be created in the future. And that is, more likely than not, our society to continue to advance, and the creation of intangible assets, content, will continue to be much more important in the future. You follow me?

Jason: Hmm mmm.

Gibson: And we continue to migrate from a post-industrial economy, whereby a vast part of the American economy is the management of information and the development of content. If you think it's important today, look at how important it is going to be decades from now. And as such, isn't Righthaven recognizing today what is going to be readily apparent 20 to 30 years from now, and that is, when a good part of our economy is relying on people respecting that which drives our economy, i.e., the creation of intangible assets in the information economy.

So what to do if you're in The Post's shoes?

Obviously, the Post should milk the PR value of this exercise by having their execs talk about it! Explain to the masses why you're trying to protect your stories, and give people the basics about fair use.

The Las Vegas Sun is reporting on it extensively. But the Las Vegas Review-Journal, whose parent company is associated with Righthaven, has only published two articles, as far as I can tell, and at least one blog post. (See the Update above.) The Post should start reporting and commenting on the Righthaven lawsuits.

The Post should take responsibility for its own lawsuits, and divulge its apparent relationship with Righthaven. Righthaven is actually kind of like one of those 527 political groups, acting "secretly" for the newspaper. And the Post's editorial page seems to hate 527s.

The Post should also instruct Righthaven to go after the larger entities first, the ones who are more likely to know better. That's basic kindness.

And also, The Post should insist that for every no-warning lawsuit that's filed by Righthaven, ten cease-and-desist letters are put in the mail. This approach is more humane, while recognizing the real-life deterrent value of the no-warning lawsuit. How much time could it possibly take to write boiler-plate warning letters to copyright violators and track the responses.

In any case, if the current approach by Righthaven continues indefinitely, The Post will look seriously bad, and it looks pretty bad already, which is unfortunate because in the big picture, its cause is just.

 

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