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Executive says suing over R-J copyrights worth the negative publicity

Sun, Sep 26, 2010 (2:05 a.m.)

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One of the executives behind the copyright infringement lawsuits over online Las Vegas Review-Journal stories says the newspaper industry hasn’t done a good job of protecting its copyrights.

But Mark Hinueber, vice president and general counsel of Review-Journal owner Stephens Media LLC, said Saturday that it’s encouraging that a big player in the news industry — the Associated Press — is working to curb unlicensed use of its news content.

AP CEO Tom Curley last week said an effort is under way to track websites engaged in “scraping,” or unauthorized postings of AP material.

Hinueber spoke about the Review-Journal’s concerns about infringement of its copyrights during a presentation sponsored by the Las Vegas Chapter of the Society of Professional Journalists.

“All content producers have done a mediocre job of educating the population” about copyright theft issues, with the newspaper industry lagging other parts of the media sector, he said.

And partly because of that lack of knowledge by the general public about copyright law, and the technological ease of copying and pasting news content, online infringements are common, he said.

When it was suggested the Review-Journal hasn’t done much to educate its website users about appropriate uses of its content online, Hinueber noted the policy is spelled out on the Review-Journal website. The policy appears in the website privacy notice.

As for news coverage that could educate readers about copyrights, it was pointed out the Las Vegas Sun regularly covers lawsuits filed by Righthaven LLC over Review-Journal copyrights, while the Review-Journal’s coverage has consisted of blog posts by Publisher Sherman Frederick and a story on Righthaven suing U.S. Senate candidate Sharron Angle.

Charles Zobell, Review-Journal managing editor, said the newspaper hasn’t found Righthaven to be particularly newsworthy beyond that, but is now considering doing a larger piece on the topic.

“We haven’t been told not to” cover Righthaven, Zobell said.

Since March, Righthaven has sued at least 136 website operators in federal court in Las Vegas charging they infringed on copyrights with unauthorized posts of Stephens Media material — mostly stories or substantial portions of stories from the Review-Journal.

The investors who control Stephens Media have invested in Righthaven, and Stephens Media participates in the lawsuits by agreeing to transfer the copyrights at issue to Righthaven.

While the Review-Journal and Righthaven say the lawsuits are necessary to stop infringements of Stephens Media material, critics, including the Electronic Frontier Foundation and defense attorneys and defendants, have accused the Review-Journal and Righthaven of everything from running a lawsuit shakedown operation to entrapment to unnecessarily inciting litigation.

Righthaven has, so far, partnered with just one other newspaper chain, WEHCO Media of Little Rock, Ark., which owns 15 newspapers, including the Arkansas Democrat-Gazette and Chattanooga Times Free Press. But Hinueber said talks have been ongoing with other potential media partners.

Hinueber on Saturday described the Review-Journal lawsuits as the beta test of Righthaven’s copyright protection service, which generally involves retroactive lawsuits and filing suits without first asking or demanding that infringing material be taken down as most newspapers do.

The lawsuits cover alleged retroactive infringements because Righthaven detects infringements to Review-Journal stories and then — weeks or months after the alleged infringements — obtains copyrights to the stories at issue and then files suits over those copyrights.

Hinueber acknowledged the lawsuits have generated negative publicity for the Review-Journal and problems for the newspaper, particularly when Review-Journal sources were sued, but said the lawsuits will continue — with the hope that efforts by the Associated Press and others will also deter infringements.

“I think the benefits are worth the negative publicity,” said Hinueber, who explained users of the Review-Journal website can avoid lawsuits by using links to stories — rather than story posts — or seeking advance permission for other uses.

As to criticism that Righthaven sues without warning, Hinueber said it’s common for legal action to be taken against thieves without warning.

Another criticism of suing over online infringements is that “everyone does it,” Hinueber said. But by that logic, people could avoid speeding tickets just because others regularly violate speed limits and drive dangerously, he said.

Lawsuits are just one part of the answer to copyright infringement, he said. “Righthaven isn’t the only solution to this problem,” he said.

“We need some sort of digital rights agency” that could be involved in copyright protection and licensing of content, he said.

Hinueber, who said he was surprised to receive a death threat after the Righthaven litigation got under way, disputed some observers’ suggestions that Righthaven is a “copyright troll” similar to “patent trolls” that buy patents and then look for infringers.

The difference, Hinueber said, is that trolls are thought to be hiding under bridges and then attacking without warning.

While saying the content industry hasn’t done a good job of educating the public about complying with copyright law, Hinueber also said no one infringing on Review-Journal content should be surprised to be sued.

“I don’t think it’s a surprise when you’ve been taught since first grade not to steal,” he said.

“If you’re operating in the Internet space, you’re presumed to understand you don’t steal your neighbors’ Crayons,” he said.

Defense attorneys and others, however, have argued in some cases involving nonprofit educational websites that they posted thousands of newspaper stories over many years and thought this was appropriate since no one complained until Righthaven started filing its lawsuits.

As to those who would post Review-Journal material without authorization, particularly sites with advertising or those that seek donations, Hinueber said: “You’re profiting off of someone else’s intellectual property.”

While the copyright lawsuits are unusual for the newspaper industry, they’re common in the movie and music industries that have been harmed by illegal downloading of their content, he said.

Righthaven has not been suing news aggregators like Google, Yahoo and Facebook that typically post the first paragraph of a story and a link to the full article. Nor does it sue direct competitors in the Las Vegas media industry like newspapers, radio stations and TV stations. Rather, it sues operators of special-interest websites throughout North America — the Democratic Party of Nevada, a Bette Midler fan site and Motor Trend’s website, for instance.

Asked how unauthorized postings of its stories by infringing sites prior to Righthaven had affected the Review-Journal’s revenue, Hinueber said he didn’t know.

“If people are taking your property and you don’t know about it, how do you know how much you have lost?” he said.

Asked if he was surprised that more newspaper companies hadn’t signed on to Righthaven’s lawsuit campaign or launched their own litigation efforts, Hinueber noted it’s difficult to get competing chains to agree to work together, and such collaborative efforts could raise antitrust issues.

“I wish more people would do more to enforce their copyrights,” he said. “When you talk to congressmen about this issue, they say they have provided newspapers a remedy for this. It’s the copyright law.”

Separately, Righthaven reached a confidential settlement last week in one of its most controversial cases: An infringement lawsuit against Boston blogger Allegra Wong.

Wong, who had a noncommercial blog about cats, written from the point of view of a cat, posted on her blog a Review-Journal story about a fire that killed some birds in Las Vegas. She apparently posted the information out of concern for the animals.

The lawsuit, seeking damages of $75,000 and forfeiture of Wong’s Internet domain name, prompted a Los Angeles Times media columnist to suggest the Review-Journal and Righthaven had taken on “less than a menacing opponent” and “effectively had blasted a small tabby with a howitzer.”

The lawsuit prompted additional criticism, such as a blog headlined: “The Internet Kills Cat Journalism.’’

During an Aug. 26 hearing in her case, Righthaven kicked around settlement numbers ranging from $1,300 to $1,500, which Wong said would be a lot for her given she was unemployed.

During that hearing, federal Magistrate Judge Robert Johnston in Las Vegas asked if Wong could be an unwillful infringer subject to just a $200 judgment — but Righthaven wouldn’t concede Wong was an unwillful infringer.

The confidential settlement was reached during a telephone conference Sept. 21 supervised by Johnston.

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Discussion: 30 comments so far…

  1. Righthaven is just doing what vultures dressed in fancy suits do. After all, we all know that lawyers are the cause of most of the lawsuits in this country, not the plaintiffs. Lawyers aggresively seek "victims" in advertisments that bait litigants with phrases such as "you may be entitled to a large monetary settlment" in many cases that are specious, to say the least. Ambulance-chasers have to drum up business so they can pay for their fancy cars, clothing & life-style. While some may be honest and mean well, most are a scourge on society especially when they get elected to office and can further their parasitic activities by enacting statutes, rules and/or regulations that prompt even more lawsuits. Shakespeare wrote: "First, we kill the lawyers." I wonder what he meant by that?

  2. Righthaven's agenda is simply not the issue here. The fact is that the R-J is well within its legal rights to sue. Copyright infringements and plagiarism incidents are completely out of control on the Internet. The concept of "fair use" allows other writers to use very limited portions of another person's work without express permission as long as proper citation is given. But these days writers simply cut and paste entire articles without obtaining permission. As a college speech teacher, I must educate my students about fair use, as many of them believe that anything they find on the Internet can be used in any way they please. They are often quite surprised to find out that is not the case, usually after receiving a failing grade for giving a speech verbatim from an article they "found on a website somewhere."
    While it is true that other newspapers simply demand that the offender remove the article from the site, that has unfortunately done nothing to reduce the number of copyright violations. I will continue to teach students how to use the words and ideas of others properly; if they insist on violating copyright or committing plagiarism, they will receive a failing grade. It may seem as if the R-J is being overly harsh, but it is the only way to get the offenders to comply.

  3. "Righthaven has not been suing news aggregators like Google, Yahoo and Facebook that typically post the first paragraph of a story and a link to the full article."

    There is nothing to sue for.

    But you are tricking the reader into thinking that they don't sue the big companies because they are afraid of them.

    It is similar to writing this, "The police did not arrest Mr. Green for wife beating, he typically yells and screams at her."

    You on purpose are trying to trick your readers.

    "first paragraph of a story and a link to the full article" is fair use and one can't be sued for fair use.

  4. Let's look at this another way: Righthaven has set its webcrawler loose, looking all over the web, night and day, every day, no vacations, no personal leave, no sick days, no lunches, no coffee breaks -- just relentlessly searching and matching text to see if there could be copying. And, after all that, they have only found 136 possible infringers. 136 out of about 120 Million blogs on the net. Assuming that every Righthaven case is meritorious, that yields roughly 1 infringement per 1,000,000 blogs. An infringement rate of 1 in 1,000,000 is remarkably low. (An average citizen of the U.S. has been calculated to have a 1 in 500,000 chance of dying in a tsunami sometime during his or her lifetime, that is twice as likely as what seems to be the odds of the infringement of an R-J story.)

    So what did Righthaven's suing of the catlady, or anyone else for that matter, have to do with the vindication of substantial rights?

  5. "I don't think it's a surprise when you've been taught since first grade not to steal,"

    Does he really think that people who attended first grade in the 50s, 60s, 70s and 80s understand that copy/paste is stealing, especially since they don't get any sort of financial benefit? Most can barely work a computer as-is.

    Also, as numerous Internet nerds will point out, copyright infringement isn't stealing. Stealing a candy bar is a slap on the wrist. In Righthaven's and Congress' view, copyright infringement is worth $75,000.

    Does that seem weird to anyone else?

  6. I completely agree that stealing content from the RJ is not right. But, what would be the harm in sending a cease and desist order before suing? Inform the website owners about their responsibility to ask permission or to just post a link and not completely copy the article. I'd have a lot more sympathy for the RJ and Righthaven if the warning letter came first.

  7. "But, what would be the harm in sending a cease and desist order before suing? "

    Because that cost LVRJ money.

    Why should they spend money to teach people simple ethics?

    They would have to hire staff to monitor the internet and find copyright infrinement.

    They would have to hire staff to find the address of the website owner.

    They would have to hire staff to send the letter.

    They would have to hire staff to response to correspondences from the infringers.

    They would have to hire staff to follow-up to see if the infringers are now in compliances.

    Are you going to give them the money to do all that?

    The Righthaven lawsuits cost LVRJ zero dollars.

    The Sun rarely defends its copyright.

    Why? Because they can't afford staff to monitor, find addresses, send letters, correspond and followup.

    Why should they be nice to people who have no ethics?

  8. Sarge, in response to your comment:

    Because that cost LVRJ money.
    *The RJ "invested" $300,000 in Righthaven.

    Why should they spend money to teach people simple ethics?
    *They don't have to. This has been done on the Internet for years, however, bloggers, etc. simply weren't aware it was a violation. Not everyone is familiar with the law.

    They would have to hire staff to monitor the internet and find copyright infrinement.
    *This is just a foolish statement. The RJ could have used half, at most what it invested in Righthaven if it were really interested in principles rather than trying foolishly to develop new revenues.

    They would have to hire staff to find the address of the website owner.
    *See above

    They would have to hire staff to send the letter.
    *Now you really do sound like Sherm Frederick with this sort of logic. Talk to the editor of the Seattle paper.

    They would have to hire staff to response to correspondences from the infringers.
    *No, a cease and desist letter first, litigation second. Again, you sound like Sherm's editorials: Illogical and well, ridiculous.

    They would have to hire staff to follow-up to see if the infringers are now in compliances.
    *Oh my, you go on and on. Why doesn't the RJ come up with an online strategy with a "paywall," if it's so interested in this issue.

    Are you going to give them the money to do all that?
    *What kind of question is this? Of course, I've got to be a character in a Beckett play to be even responding to this.

    The Righthaven lawsuits cost LVRJ zero dollars.
    $300,000 so far. What's been the return.

    The Sun rarely defends its copyright.
    How do you know the Sun hasn't written a letter or two.

    Why? Because they can't afford staff to monitor, find addresses, send letters, correspond and followup.

    Why should they be nice to people who have no ethics?
    Read Aristotle and learn about ethics.

  9. ardahigbee: Irrelevant

  10. "Also, a big FYI, there is a key difference between the words "investment" and "expense"."

    Sarge, I've looked at a range of hypothetical numbers on this matter, as well as the costs. I've also spoken with reporters and editors at other newspapers, none of whom can see either profitability from this "strategy," or possibly the survival of the newspaper given the possibility of source dropoff.

    I'm not sure who you are, though a minion of Sherm or Gibson, who like Christine O'Donnell had a "previous engagement," but I do know the economics of the newspaper business, and the tenderhooks by which swings now. Sherm Frederick's legacy, it's thought, will be to have destroyed something that under Don Reynolds was a much sharper product.

    Your bandying numbers about don't work. Considering the settlements Righthaven has received so far; and considering that once a couple these cases roll through court with the strong possibily that recovery will be deminimus, I have to wonder how the paper's going to pay its staff.

    I don't know if you've done your home; it doesn't seem as you're on the borderline of rave and rage on this matter -- thoughtful persons are just that, they think thinks out.

    AP's strategy, by the way, will be to write letters first. And the New York Times has already gotten smart and is starting a "paywall" in January.

    Mr. Frederick seems like a publicity hungry fellow seeking a legacy based on a non-workable, non-journalistic revenue stream and I suspect his legacy will be little more than that of an unsavvy publisher who tore down a newspaper on a whimsical business tactic -- In short, a failure. And his paper's content pretty much reflects that weakness in terms of its content and reporting.

    I would guess that if the economy were better, any true reporter there would jump ship as soon as the opportunity arose.

    Your arguments are simplistic and embarrssing, just like Sherm's editorials. They lack basis in fact, common sensical thought and any knowledge of the impact, short and long term this action is having on his staff and what little readership the RJ has left.

  11. Sarge: "I have known all along that your a freaking newspaper wiz genius." Thank you, I am somewhat of a newspaper wiz.
    "You are using the range of hypothetical numbers of one. OMG!!! You are a math genius indeed." Numbers weren't baseless, but drawn from the $300k the RJ has already invested, public settlements and the general cost of Righthaven's business drawn from its approximate rent, cost of filings a minimal salaries.
    "So you should be in the know what AP is about to do" I am.

    "AP doesn't even like people using small quotes from its material without paying a license fee" Not exactly true.

    "You've got to be Sherm to attribute "According to you, the LVRJ will be out of business by Sept 27, 2011" to me. Your sources are drying up and your advertising's down, partly the recesssion but that decline has grown since the rash of suits has been filed. I never said that you'll be out of business, just that you're losing sources and you are.

    Wrapping one paper in another is your continued meaningless argument. Your newspaper has less than 200,000 in circulation and that's been flat to down for years. The Sun has a stronger website that's updated more frequently, while your paper as, in the eyes of many, one of the poorest websites in the business.

    What you're not looking at is the great picture which is one that is starting to make it more difficult for some reporters to do their jobs and what the future of this business will look like.

    This is not an LVRJ-Sun discussion. The Sun made its bones with a Pulitzer and I think it generally has better reporting and writing, but that's subjective. I also think that the Sun's better prepared for a paid online service, unlike the "bigger paper in town," which should have, by now, started floating the paywall idea out to its readers.

    It's just bad business not to do that, and bad business to engage in what might be the kind of litigation that draws the courts attention to numbers of suits, rather than the matter itself.

    Innocent infringement, in my opinion, will play a big role in this, as will barrastry. It's supposition, I'll acknowledge, but at least I acknowledge it, rather than pontificate.

  12. It's just impossible to discuss anything with Sarge on a dispassionate, open basis.
    "NY Times tried once the paywall and it was a miserable failure....There is no major newspaper in the USA that purely places all its content behind a paywall."

    At least the Times gave it a go and the numbers show that it wasn't a "miserable" failure. It put "Premium" news behind it and had a reasonable number of subscribers. It's doing it again in January in some.

    The Wall Street Journal has a "paywall," the success of which surprised Murdoch when he took over, according to "The War at the Wall Street Journal."

    And, misquoting as you constantly do, I never said that any paper puts everything behind a "paywall."

    And stop with the "come by my house" analogy. It's a false analogy and if you don't know that, then, well, this is why it's just foolish to debate with you.