Copy Fight

A new front opens in the battle over online copyright infringement

Since 2003, Clayton Cramer, an author and historian who has written numerous books on the right to keep and bear arms and the evolution of America's gun culture, has edited a website that is currently called The Armed Citizen. With the help of another contributor, David Burnett, Cramer uses the site as a repository for newspaper articles that document instances where firearms owners use their weapons in self-defense. Over the years, the pair had posted excerpts and complete text of approximately 4,700 articles, and in doing so, they created a unique and useful archive for researchers, activists, and people who simply enjoy feel-good tales of homeowners protecting themselves and their property from intruders and assailants by any means necessary.

In all that time, they say, they'd never received a single request from a copyright owner to remove an article. Last week, however, Cramer and Burnett were caught off-guard by a figure who aims to establish himself as the new sheriff in the lawless wilds of cyberspace. He was packing a .36 caliber copyright infringement lawsuit and he didn't bother with a warning shot. Instead, Cramer and Burnett only learned they were being sued after a reporter from the Las Vegas Sun contacted them about the case.

The man who brought the suit against The Armed Citizen is named Steve Gibson. He's the founder of a company called Righthaven. Righthaven's business model involves acquiring the copyrights for specific articles originally published by the Las Vegas Review-Journal, then filing lawsuits against website owners who have posted those articles without permission. In March, it filed its first lawsuit against a New Jersey company called MoneyReign.

Since then, it has filed at least 88 additional suits against bloggers, message-board operators, advocacy organizations, and various other websites. So far, all of the lawsuits have involved articles published by the Review-Journal, but in a phone interview, Gibson told me that Righthaven does have other clients. "It will become plainly evident who they are within the next 30 days," he exclaimed. Some of them, he added, produce content other than newspaper articles.

Cramer and Burnett are frustrated that Righthaven didn't give them an opportunity to remove the articles in question. "With our e-mail addresses right there on the front page [of our site], all it would have taken is an e-mail asking us to remove or alter the listing so as not to infringe," Burnett said in an email response to my questions. "By not contacting any of the websites with a takedown notice beforehand, they're showing they're interested in money, not resolution."

In a recent Wired.com article, Gibson was certainly candid about the money-making potential of his approach. "Media companies' assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues," he said.

But in my phone conversation with him, he also characterized his approach as the best way to discourage infringing activity. "There are these folks out there who say, 'Oh, they should send out a takedown letter.' But people have been sending takedown letters for over a decade now and it's had little or no effect on infringements. Infringements continue to grow."

His solution is to employ the deterrent of statutory damages. "Statutory damages are damages where you don't have to establish what your economic losses are," he told Las Vegas Sun journalist Jon Ralston in a video interview. "The Supreme Court has made it very clear that the statutory provision was put in the Copyright Act in order to create a deterrent, a punitive or penalty measure, because it's so easy to have copyright infringement."

To file an infringement suit in court, a copyright holder must first register the work in question with the U.S. Copyright Office. In addition, to qualify for statutory damages, the copyright holder must register the work within three months of publication of a work or prior to its infringement. In the case of The Armed Citizen, for example, the Las Vegas Review-Journal published an article entitled "Slain Store Clerk, 77, Mourned" in its print edition on May 17, 2010. Three days later, Burnett posted the article in its entirety on The Armed Citizen, minus the authors' names but including a link back to the Review-Journal. At some point, Righthaven discovered The Armed Citizen's post. It registered the article with the Copyright Office on July 6, 2010, thus meeting the requirement that will allow it to seek statutory damages if it can prove that Cramer and Burnett knew they were committing infringement.

While it costs at least $35 to register a work with the Copyright Office and another $350 or so to file a lawsuit, the potential pay-off can be huge. A single instance of willful infringement can yield statutory damages of $150,000.
So far, none of the lawsuits Righthaven has filed have gone to trial. According to Gibson, Righthaven has reached resolutions with around 30 defendants to date. Citing confidentiality requirements, Gibson refused to divulge any details regarding these settlements.

In the dozen or so complaints I read, all involved sites that had posted articles in their entirety. In some cases, Righthaven documented multiple allegedly infringing articles that defendants had posted. In others, it documented just one. For example, a pastor in Las Vegas posted a single op-ed from the Review-Journal on his blog. A woman in Boston, who maintained a blog purportedly written by her pet cat Artie, posted a single article about a fire at a nature sanctuary.

At Chillingeffects.org, a website that aims to protect Internet users from unwarranted legal threats, a FAQ advises that "the fair use doctrine, as currently interpreted by the courts, probably would not entitle you" to "copy an entire news article from a commercial news website and post the article on [your] site." In an Online Media Daily article that reported on several of Righthaven's earliest lawsuits, Sam Bayard, assistant director of the Citizen Media Law project, stated, "It's unlikely that there's any kind of fair use defense for simply posting an entire article, regardless of the motivation or beliefs about the law."

Facing the specter of imposing fines, and lacking strong arguments for fair use, an out of court settlement is the least nightmarish scenario for many of the individuals and mom-and-pop organizations Righthaven has sued to date. With six full-time employees and an annual budget of around $1 million, NORML, the pro-marijuana advocacy organization, is likely one of the larger entities that Righthaven has sued. In addition, in NORMAL's case, Righthaven was not eligible for statutory damages because it hadn't registered the article it accused NORML of infringing within three months of its publication at the Review-Journal.

Even so, NORML eventually decided it made more sense to propose a settlement than to sink time and money into what could end up being a lengthy and expensive defense. "The cost of paying attorneys is what firms like Righthaven rely on," Clayton Cramer charges. "The threat of having to spend thousands to tens of thousands of dollars on a defense pretty well guarantees that they can demand a settlement that is of similar scale—and get it."
Granted, Cramer wouldn't be facing the challenge of mounting a convincing fair use case for The Armed Citizen had he simply relied on excerpts and links to build the repository of information that existed there until last week. (In light of the lawsuit, he has temporarily shut down the site.) But there were legitimate reasons he chose to reproduce, as he describes it, "significant text" from articles. First and foremost was to ensure completeness. Newspaper articles eventually migrate to paid archives. Or get moved around during site reorganizations. Or are simply purged over time.

Having the articles all in one place also made it easier for researchers to use the archive while analyzing and categorizing thousands of incidents. And, finally, one suspects, posting complete or near-complete articles was simply easier than summarizing them all. The Armed Citizen was a part-time gig—had it required a lot of time or cost a lot of money to develop, it may not have developed at all. Were that the case, the world would have one less useful research resource, and the Las Vegas Review-Journal would still be yearning for the good old days when information was scarce and expensive.

Which is not say there's no place for copyright enforcement on the web. As a freelance writer, I have a predictable attachment to the old-fashioned idea that content creators should be able to largely call the shots on how their work is disseminated. And a strong desire to see those who unfairly appropriate the work of others get their just deserts. But if the sites Righthaven has sued to date represent the worst threats to the Review-Journal's ongoing viability, then the destructive force of copyright infringement has been overstated. And if there are more substantive threats out there, why not sue them? Surely they can't be any harder to find than a cat blogger from Boston who posted a single infringing article on her site.

Contributing Editor Greg Beato is a writer living in San Francisco. Read his Reason archive here.

UPDATE: David Burnett writes to clarify that it has not yet been established if Armed Citizen's usage of the article in question was an infringement or a fair use, and that his statement should not be taken as an unintentional admission of guilt.