The Trauma Intervention Program (TIP) of Southern Nevada is a nonprofit that sends trained volunteers to the site of severe accidents, suicides, fires, and violent theft. The volunteers comfort family members, witnesses, and bystanders—traumatized people who can't be helped by anything found in an ambulance.

TIP might seem an unlikely target for a federal copyright lawsuit, but it found itself hauled into court last week for posting 14 local newspaper articles about TIP and its volunteers to the group's website. In most of the articles, TIP volunteers are the main sources for the reporters, providing plenty of quotes and (sometimes jarring) anecdotes about their work.

The lawsuit was filed by a company named Righthaven, an entrepreneurial venture formed by a Vegas attorney and the publisher of the Las Vegas Review-Journal. It was filed without warning or notice, and it seeks more than just statutory damages and attorneys' fees; it asks the court to "direct GoDaddy and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven."

What kind of news operation files federal lawsuits without warning against its own sources and then tries to take control of their Internet address? Well—Righthaven does, and it has filed more than a hundred similar lawsuits since setting up shop earlier this year. All target small operators and bloggers, including one against a blogger so small-time he gets about twenty hits a day.

None of the suits have yet gone to trial, though many have been settled privately. The Las Vegas Sun, a competing newspaper that has been chronicling the Righthaven saga, reported in August that 22 of the suits had been settled; most terms were private, but "court filings revealed two defendants paid $2,185 and $5,000, respectively, to close their cases." (The $2,185 came from NORML, which works to reform marijuana laws.) No one has apparently turned over a domain name.

Is this really what the Las Vegas Review-Journal thought it would be getting when it decided to "protect its content"?

Don't touch my Vette!



On May 28, 2010, Las Vegas Review-Journal publisher Sherman Frederick wrote a meandering blog item on his paper's site, titled "Copyright theft: we're not taking it anymore." In opening the piece, Frederick didn't talk about copyright or theft or the law or fair use; he talked about what he loves most about newspapers.

Item number one: "A good newspaper maintains a good local sales force which calls on every business in a given market, forming a relationship that bonds the newspaper to the business community. Few organizations, if any, have that kind of sales muscle. A well-managed newspaper sales force is truly a beautiful thing to behold."

An odd choice, perhaps, but to each their own. When Frederick's list finally gets around to "content" (it comes after distributors, the production crew, and the executive team), the talk turns to protection—and the dreaded car analogy makes its first appearance.

Imagine that Frederick keeps a '67 Corvette in his front yard and that people come by to gawk at it. "There'd be nothing wrong with that," he says. "I like my '67 Vette and I keep it in the front yard because I like people to see it."

Sadly, however, in this example you are the sort of moral degenerate who thinks nothing of jacking someone else's car, and that's when the trouble begins: "But then, you entered my front yard, climbed into the front seat and drove it away," Frederick chides. "I'm absolutely, 100 percent not OK with that. In fact, I'm calling the police and reporting that you stole my car."

Now substitute "small online outlets posting occasional articles" for the "Corvette" and "Righthaven" for the "police" (in his post, Frederick announced that the new company had already begun filing lawsuits).

Righthaven scans the Web for potential infringements of Las Vegas Review-Journal articles, then licenses those articles from the paper. Newspaper articles are automatically copyrighted, but few are ever "registered" officially with the Copyright Office. Righthaven files a registration after obtaining a license; once it has done that, it files a lawsuit.

To date, the company has gone after an odd assortment of characters, including everyone from Wehategringos.com to the Hepatitis C Support Project to Second Amendment Sisters to the American Society of Safety Engineers, along with numerous individuals (see a complete list of cases).

"If you operate a website (liberal or otherwise) and don't know what 'fair use' is in the context of American copyright and Constitutional law, then I suggest you talk to your copyright lawyer and find out," wrote Frederick at the end of his blog post. "Otherwise, at the risk of overusing this analogy, I'm callin' the police and gettin' my Vette back."

Demonized



No one likes a car thief, yet Righthaven has come in for sustained, often brutal negative publicity. Why? In part because the company generally targets such small operators, people or organizations that have little money to fight back. Few cases involve wholesale, widespread copying; some involve only a single article. And the request to seize someone's Web presence over even one copyrighted articles looks bizarrely punitive, a measure designed to scare people into settlements.

There are occasional high-profile targets; last week, Righthaven went after Nevada Senate candidate Sharron Angle, again seeking her domain name after Angle's campaign posted numerous, complete articles to its website.

University of North Dakota law professor Eric Johnson called the Angle case "a real mess. From the perspective of integrity and the public trust, I think this is a very sorry position for a newspaper to be in. The Review-Journal never should have involved itself in the Righthaven scheme. I wonder if that is dawning on them now." And his has been one of the gentler reactions (one anti-Righthaven blog calls the company "a bottom feeding legal outfit").

Righthaven has also targeted the sources for some of the articles it controls, a nearly unheard-of practice in journalism. Without the willingness of sources to speak with reporters (and free of charge), the Review-Journal couldn't have written most of its TIP stories in the first place. Whatever the legality of these suits, they would seem counterproductive as a business measure. What sources would want to participate in such an operation?

Responding to criticism of the practice, Righthaven boss Steven Gibson said this summer that he was pondering some changes to limit lawsuits against sources. "But I’m not giving them a blanket waiver," he told the Las Vegas Sun. (Righthaven did not respond to our request for comment on the TIP case.)

Many of the Righthaven cases certainly appear to be infringement, so the company may well be within its rights. But why pursue the full extent of one's legal rights? Can such minor uses of Las Vegas Review-Journal content possibly be damaging the business? The court case against NORML (The National Organization for the Reform of Marijuana Laws) provides some helpful numbers.

NORML offered to settle with Righthaven for $2,185.95, which was eventually accepted. The settlement document explains how the amount was arrived at:

As a point of information, this amount was arrived at by examining the number of persons who could possibly have viewed the 'Marijuana as Medicine' article on MAP INC’s servers (247), and multiplying that number by the dollar amount charged by the Las Vegas Review-Journal to purchasers of copies of the article from its news archive ($2.95). Nothing in this offer is an admission that 247 people actually did view the article on MAP INC’s servers, and in fact, NORML believes that the number is far lower. Nevertheless, this offer is calculated to be the maximum amount that Righthaven could possibly, theoretically, collect in actual damages for the alleged copyright infringement in this case, and then to remove all doubt of the reasonableness of the offer, this amount was then tripled.

In reality, most of those 247 people would never have paid $2.95 to access some article from a local paper's news archive if that had really been the alternative, so the "losses" here would seem so minimal as not to be worth bothering about (if the article was free to read, there are 200 ad impressions to consider). But Righthaven, and the papers it works with, believe they are suffering the "death from a thousand cuts," and they hope to end even casual, noncommercial, minimal copying.

Barring that, a few thousand dollars in settlement money will have to suffice. And possibly a domain name.

Meet my little friend

Frederick, the Review-Journal publisher, comes across as a man of great conviction—though without much time for nuance. Case in point: this September, he wrote two editorial pieces on content protection called "You either do it, or you don't" and "Thieves are thieves."

Simplistic? Extremely. This black/white approach to infringement means that Frederick has no doubts about throwing in his paper's lot with Righthaven. Since using Righthaven, "we've seen no erosion in revenue or traffic to our website," which would hardly be a glowing recommendation in any business but the newspaper business.

And then there's all that talk of thieving. On September 2, Frederick ran a copy of note from one of his columnists, a note addressed to a reader who was boycotting the newspaper over its deal with Righthaven. The Review-Journal columnist, Vin Suprymowicz, told this reader:

I don't think I will miss you. I have a far lower opinion of thieves than you appear to have. In fact, watching them copy my columns while interpolating their own content and pretending it's mine, watching them throw small merchants on the verge of bankruptcy by switching price tags and otherwise stealing merchandise below cost, I hate them with a passion. Lawsuits? They should have their godd**ned hands cut off and nailed to the wall of City Hall.

That's certainly one way to go, though I suspect even a city like Las Vegas would prefer not to have the hands of local trauma volunteers nailed to its city hall.

In the absence of these much-desired hand-chopping laws, Righthaven will have to do. And if its approach feels a bit heavy-handed, there's a reason for that, and it comes from the top.

As Frederick put it on September 1, "So, I'm asking you nicely once again—don't steal our content. Or, I promise you, you will meet my little friend called Righthaven."