Sunday, June 26, 2011

Media Muddle Extra: A Week In Righthaven

This deserved separate treatment from the prior post, so here we go.

On Wednesday, Jon Ralston faux-hammered Steve Gibson, the CEO of Righthaven, the company that has been suing hundreds of websites for alleged copyright theft for the R-J and the Denver Post. It was entertaining, especially watching Ralston nearly and literally fall out of his seat trying to shove questions upon Gibson, who evidently believes bad posture and donning sweater vests in 105 degree heat are ways to appear smart and knowledgeable on TV. Watch it:

Jon did pull off a few stunt questions designed to amuse viewers more than get serious answers, stuff like "You really screwed this thing up, didn’t you?" and "This is just a shakedown, that’s all this was." (Dream responses: "Yeah, that's why I'm an alcoholic now" and "Of course, how do you think I pay for these bitchin' designer specs?" Real responses: "No" and "No".)

Ultimately, despite Ralston's efforts to appear tough, Gibson got away with spouting off some pretty awesome rhetorical lies. The problem Righthaven faces is that a Nevada judge spanked him for possibly deceiving the courts as to who actually owns the rights to the material over which Righthaven has been suing possible infringers. Gibson disagrees, naturally, with the judge's suggestion that only the true and full owner can do so. Righthaven believed that getting the R-J to sign over some but not all of the ownership rights would cut it, but they didn't tell the court they didn't have all rights to the material.

This matters because the whole purpose of Righthaven taking over the copyright was essentially to protect Stephens Media from being liable should something go cockeyed in this litigation. Like, say, if someone on their side does something wrong like, I dunno, committing perjury. The person liable is whomever actually owns the copyright, and since Stephens didn't give it all up, the judge says there's no reason why the court should listen to Righthaven.

But here's how Gibson put it to Ralston:

An analogy here is, you can own a house and have title to that house. And then you can lease, allow someone to use that house. Allowing someone to use the house doesn’t mean you lose your title with respect to that house and being able to do certain things with that house. The debate that we’re having is whether or not the documentation with the clear intent of Stephens Media and Righthaven, is to have Righthaven own the house, whether or not that documentation at this point supports it.

OK, so this makes no sense whatsoever, even if Ralston didn't notice. If I lease my house, my renters can't go into court and sue, say, my HOA if they're mad about something. They would be committing fraud if they told a judge they were the owner just because they paid me some money to use my house. No matter what they say, unless I sign over the whole title to the renter, I still own the house. I suppose the renters could appear in court on my behalf if I let them, but I'm still the central figure in the litigation. Everybody who is in court is representing me, not themselves. And they must, legally, say so.

Righthaven told the court they owned the house so the court would recognize they have a stake in the lawsuit. But it turns out, they did not own the house and don't have a stake. Heck, they weren't even renters. Gibson's house renter isn't analogous to Righthaven, it's analogous to the people who pay to reprint R-J content. They get to use the material without actually owning it, just as a renter gets to live in the house without owning it.

Oh! Here's another pile o' baloney from Gibson that sailed on by Ralston:

If you Google a search, Google doesn’t say, "Oh we’re only going to show you the content if it’s at a megasite," they’re going to show you the content if it’s topically relevant. You understand that?

Holy crap! Gibson just defied comprehension of precisely why anyone uses Google, which is specifically to sort material in a useful way. That means that if the Drudge Report and GibsonsAMoron.Com post the same article, the Drudge Report's version is going to show up at the top of the Google chain and the version will probably appear several pages down where nobody ever looks.

So, Steve, yes, Google will show you the content that is topically relevant, starting with the MOST POPULAR venues where that material appears. That means that being ripped off by HuffPo is more significant than being ripped off by RunninFromThePoPo. You understand that?

No, I suspect he doesn't because the brilliant, proprietary secret sauce of Righthaven is obviously to set up customized Google news and blog alerts that ping them every time someone uses something with a catch phrase or term. Yes, in that case, you get every last thing regardless of if it's from a major outlet or some site nobody's ever heard of. In that configuration, all that comes up is what is "topically relevant." But that's not functionally how most people use the Internet or Google.

(Aside: I don't have the time to do this research, but it would be enlightening to take all the R-J material over which Righthaven has sued and analyze them to see what phrases they all have in common. Then we'd know what the search was. Why do I have this feeling the term will be "Las Vegas Review-Journal", meaning they only found these infringers because they were stupid enough to, uh, cite the source? Just a hunch.)

The thing I'm most bummed about, though, is that Ralston didn't say to Gibson: "What did Sherm Frederick know and when did he know it?" That's the good stuff, the human stuff, the non-legalese scandal of it all. This whole debacle was green-lit by the already-disgraced former publisher, who surely knew the court filings misrepresented the true identity of the ownership of the material. Now Frederick is gone and his former company is staring down the barrel at possible court sanctions. He's a guy who has been advocating personal responsibility for decades, as many conservatives do, but thus far he doesn't seem too willing to own up to any errors he may have made in all of this.

Sad Shermy published a column on Righthaven today and he almost snookered me into agreeing with him yet again! He chose to address a different ruling against Righthaven, one in which a judge seemed to have a bizarre view of what constitutes a column worthy of copyright protections. Certainly, what the judge wrote in weighing whether the posting of a Sad Shermy column was Fair Use was questionable and weird.

Alas, Sad Shermy left out some fairly significant and relevant details, as usual. Leave it to Steve Green from the VegasInc.Com fill them in in his assessment of Sad Shermy's piece. In a brutal piece that explains how the mishandling of the Righthaven campaign has actually systematically made intellectual property on the Internet less protected rather than more, he noted:

Here’s something else Frederick didn’t point out in today’s column: Pro’s finding that the Frederick column at issue in the Hoehn case “contains a significant informational element” as opposed to being purely creative, is a factor that “is not terribly relevant in the overall fair use balancing.”

The key factors were that Hoehn “did not and could not profit from posting” the column, that he posted it for informational purposes to foster discussion on a public policy issue and that Righthaven failed to show any harm to the market for the column.

What?!? Sad Shermy wrote an entire column on a straw man argument? The judge said that how he defines Fair Use isn't where he rests his case? It was that the poster could not actually profit from posting the thing? I wonder if he thinks the courts are as stupid as he thinks his readers are, that maybe appeals judges will dwell on the irrelevant part of the ruling just as he did.

Sad Shermy also forgot to explain what he knew and when he knew it regarding Righthaven's telling the court that they owned copyrights that they did not own. I suspect that will have to wait for a deposition. Bring popcorn.


Steve Stern said...

Couldn't resist posting your first graf and linking to this one. Forget the nice writing, which is clearly there, this was both witty and rather eloquent. But then, who am I but a former defendant.