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

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

Sun archives

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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