So-called patent “trolls” have received attention in the media for buying up patents and then asserting them without actually “making” anything. Now Righthaven, LLC, a company that could be called a “copyright troll,” has been purchasing the copyrights to news and media articles, seemingly for the sole purpose of filing lawsuits against individuals who have published quotes or excerpts on websites or blogs.
Beginning with the Las Vegas Review-Journal, and extending their reach to newspapers in other states, Righthaven obtains the copyright to articles after links to the articles are attached to a web posting. Righthaven then sues the blog owner, without sending a standard “cease and desist” letter, for copyright infringement.
Righthaven has filed over 165 cases in over a year, a majority of which settled before going to court. One defendant decided to fight, Michael Nelson of Realty One Group, Inc., which has a blog providing information on home ownership in Las Vegas.
Nelson’s blog displayed the first eight sentences of a thirty-sentence news article originally published by the Las Vegas Review-Journal, with a link back to the newspaper’s website. Righthaven obtained rights to the article a month after the link was posted and sued Nelson. Nelson filed a motion to dismiss the suit on the basis of protection under the Fair Use doctrine.
The Copyright Act provides that authors of news stories are entitled to copyright protection, but that copyrighted material can be used under certain circumstances without permission, which constitutes “fair use.” The court considered the four factors in coming to its decision to dismiss Righthaven’s suit:
1. The purpose and character of Nelson’s blog does have a commercial component in attempting to create business for himself.
2. The portion of the article quoted by Nelson was primarily factual rather than creative.
3. The amount of the article quoted (8 out of 30 sentences) weighed in favor of fair use.
4. The effect of the hyperlink did not have a negative effect on the copyright holder.
The opinion read: “The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety and thereby does not dilute the market for the copyrighted work. Additionally, Nelson did not infringe Righthaven’s copyright as a matter of law, and the court shall grant Nelson’s motion.”
An irony of Righthaven’s business model is that links drive traffic to websites, and thus are valuable to content creators by enabling increases in advertising fees.
However, it might be advisable when including quotes and hyperlinks to copyrighted material to quote minor amounts of material online, and select material to include that is factual rather than creative.
