Friday, September 3, 2010

HOLY SH*T ALERT: The R-J Sues Sharron Angle

They actually did it.

The Review-Journal's copyright-enforcing arm, Righthaven LLC, has sued their own darling candidate for Senate, Sharron Angle, just as I said they would have to on Aug 23.

The Las Vegas Sun's Steve Green reported a half-hour ago that Righthaven, on behalf of the R-J, is seeking $150,000 in damages from Angle personally and the forfeiture of her domain name, SharronAngle.Com.

What did I tell you? The fun, indeed, starts now. The campaign will have to defend itself against stealing content, which they really cannot do because contrary to what one diligent commenter on this blog suggested the last time we had this conversation, it is NOT "fair use" to say, "Here's this neat story about me!" and post the whole thing.

What's even more engrossing here is that Angle and her partisans can't complain that the R-J is biased against her, seeing how both its editor and publisher are on record as rooting really, really hard for her to take down Senate Majority Leader Harry Reid. In fact, this ties lefties in knots, too, as how will Erin Neff and her phony "journalism accountability project" -- the words of gay activist Rob Schlegel today at a Reid event I was covering -- fit this into their inflexible world view that the R-J is working in insidious ways to bring down the Democratic incumbent?

To be honest, I actually am shocked. When Righthaven CEO Steve Gibson talked to me that day, he refused to let me send him links of the offending material and rejected my suggestion that not suing Angle would weaken the other 100+ cases.

"There are probably millions if not billions of infringements we won't be able to address. It doesn't weaken our position at all. ... Two wrongs don't make a right. Two infringers doesn't make an innocent infringer."

Jon Ralston's TV producer, Dana Gentry, called me after the post to ask if I'd asked Gibson or Angle's folks whether the R-J had provided Angle with permission to post the stories. I hadn't asked and Gentry said she'd find out, but I got off the phone realizing that that was, indeed, a serious loophole.

Well, loophole filled in! According to the Sun's story, the lawsuit against Angle states:

“Ms. Angle did not seek permission, in any manner, to reproduce, display, or otherwise exploit the Works (stories)...Ms. Angle was not granted permission, in any manner, to reproduce, display, or otherwise exploit the works.”

Then again, one of my wise commenters here, on Facebook or on Twitter -- so hard to keep track these days -- noted that for the R-J to let her use the stories gratis would be akin to a campaign donation now that they've affixed prices to it and have become so aggressive in addressing it. There could be messy FEC issues therein for everyone involved, including the undeclared, de facto donor.

So here we are, with the only reasonable outcome given Righthaven and the R-J's posture of suing the pants off all sorts of copyright infringers. Their lawsuits are now about to get the notice not just of the journalism and technology media but also political pundits. Don't be surprised to see this image... a pro-Harry Reid TV ad or mailer soon.

This situation has fascinating implications. Sure, they could settle, but the settlement money would probably have to come from campaign coffers, so we'll see it someday. If they don't settle and this goes to trial -- perhaps after Angle wins and becomes a senator -- we will be privy to the web traffic of a major-party Senate candidate's site as a matter of the public record, data that has always rightly been seen as proprietary.

Separate and apart from the question of whether the R-J, via Righthaven, can sue for damages, can they actually seize SharronAngle.Com? I mean, that's her name, her property. There's actually lots of case law -- including a successful suit by Hillary Clinton to wrest her domain name from a cybersquatter -- to show that Angle has pretty strong rights to it. It's a baffling piece of this.

Oh! And while I have your attention, the R-J also now must sue a major potential advertiser, The Cosmopolitan of Las Vegas. I just noticed today, while researching the property for an upcoming update to the VegasMate iPhone app, this:

Click on any of those -- although we only care about the R-J items -- from this site and you DOWNLOAD A PDF OF THE ENTIRE STORY. Fair use? Not even arguable.

The Cosmo is a $4 billion resort due to open in December. That's some deep pockets there, unlike so many that the R-J has already sued! How fun it will be to see the R-J sue a company that could then choose not to dump thousands of dollars into their ad revenues this fall! But they have no choice, do they?

Any which way, grab a bowl of popcorn, dear readers. It's going to be riveting one way or the other. Yes, I support the R-J's efforts. But does that mean I can't get a kick out of how many headaches it actually causes the folks on Bonanza Road?


mike_ch said...

I would think after realizing how many people, big and small, do this; you would eventually realize how fruitless and stupid the RJ's plan is?

Like the music industry in the pre-iTunes era, it's like watching a sinking battleship fire all their guns simply because they can.

Sherm can complain about how "Please Stop" notices don't work, but they cost very little to make and many people would obey a Please Stop message and would be fine if you send the lawyers after the people who don't.

JeffinOKC said...

I keep coming back to the same question every time I read one of there stories-how do these lawsuits help the R-J business? How, in real world terms, does this make more eyeballs look at advertising?

David F. said...

I am wondering if this is a case of the RJ/Righthaven being seen do the right thing. What's to stop them settling for a nominal sum, which of course will be reported as "terms were undisclosed"

Jason said...

re: Cosmopolitan, you're forgetting that there's always the possibility that they do have permission to post the articles. Granted, it's a small possibility but still it's a possibility.

Unknown said...

"Yes, I support the R-J's efforts." While you try to be a neutral observer, it appears you really are not a proponent of fair use. To support R-J's efforts means a warning of infringment will never be forthcoming. They want the money. There are lawyers to support.

I wonder why they didn't they start with the big monied infringers like The Cosmopolitan of Las Vegas and Sharron Angle. Why go after the small non-profit bloggers first? And why did they go after the Democratic Underground who DID follow fair use rules correctly.

They want to sue to get the money, and they didn't want anyone who is sufficiently capitalized and principled to fight back.

I think Sharron Angle will settle the lawsuit quietly and ask for permission to post excerpts. They won't disclose the amount. Or maybe they will barter as services rendered (as campaign materials or research), thus nominal campaign funds will be used.

The Cosmopolitan might settle as well. Even though they have the money to fight, settlement is much cheaper. A defense will drain much needed funds. Every business expects some frivolous lawsuit, but fair use is not something they will fall on their sword.


zmous: I'm not and never said that Righthaven and the RJ have executed their plan flawlessly. But your version of fair use is anybody posting anything as much as they want whenever they want for whatever reason they want, and that's just silly. One thing that dawned on me as I read your comments was that actually, had the R-J started sending out spates of takedown notices, they would have taken the public relations hit anyway AND they'd have nothing to show for it and no way to pay for having to do so. At least this way, they've created a profit motive for someone to pursue their legal rights for them so they DON'T have to spend their own money doing so.

The prioritization of who they've sued is a major problem with the execution. It created PR problems and isn't likely to result in the award of any damages, going after sites with virtually no traffic.

Unknown said...

"But your version of fair use is anybody posting anything as much as they want whenever they want for whatever reason they want, and that's just silly."

Nice try, but not really. Since I said the cease and desist letters should be sent first so people will respond appropriately to fair use law as using very small portions with attribution to R-J, also with commentary or other such educational uses. By definition, the lawsuits only allows monetary settlement with no fair use.

"they'd have nothing to show for it"

Exactly what do you expect? There is no money for fair use. I am sure most of those who infringed had no intention of doing so. They would have simply followed the rules, thus depriving R-J of any chance of a lawsuit. However, you didn't dispute how their plan failed with the Democratic Underground who did follow fair use rules correctly.

In addition, you didn't remark on how R-J has effectively sued its own sources. Who would want to be a source for R-J now? ('Thanks for contributing to the story.. now pay me for doing my job and the lawyers I've hired!!!')

If the goal is driving web traffic so R-J can profit from their own material, they didn't have a plan for this. Their plan is pure shakedown for anyone that dares to post their material. Over 100 web sites have removed any R-J materials from their web sites. I expect more to follow to save their skins. Goodbye cat lady.

Unknown said...

I must also comment that I think your screen shots of Sharron Angle's website of R-J's full and complete articles can present an opportunity for Righthaven to sue you. It's not that I'm hoping it'll happen, but to be consistent, THEY MUST SUE. Why allow you the exception? It's not fair use of their articles. You didn't mention you got R-J's permission to publish. And you claim in your blog that it is the full original article.


zmous: You're reaching, pal. What I'm doing and showing is clearly newsworthy and, thus, certainly fair use. The issue has been raised and my analysis and evidence is part of that coverage. But, sure, Righthaven COULD sue me. They COULD sue anyone. I didn't publish their article; I published examples of their work being ripped off in the context of a discussion about their efforts. Also, if you want to be real technical, I also haven't republished entire pieces, as you claimed. I SAID the whole piece was there, but the screen shot was a portion. Again, though, your point is illogical. THIS is fair use. Posting stories just to make it convenient for readers to see them on your own site because you find them interesting is not. Fair use is not, "hey, i think this is cool. Here it is" or "hey, i'm in this article so I have the right to republish it." Sorry. You can keep saying otherwise, but your definition of fair use is nothing less than an unrestricted free-for-all.

Unknown said...

"Also, if you want to be real technical, I also haven't republished entire pieces" Correction for you and me, all you have to do is publish a substantial amount of material to violate the terms of fair use. It does not have to be the whole article. It can be half, more or less.

Newsworthy is not a defense against a lawsuit. They could sue you and win. I would hope they would show you mercy with a warning (that they offered to no one else).

You still did not defend the Democratic Underground for not violating the fair use rules.

"Sorry. You can keep saying otherwise, but your definition of fair use is nothing less than an unrestricted free-for-all." Not really. I called for a cease and desist letters to be sent so everyone will know how to apply fair use to R-J's articles. R-J does not deserve to be paid for its articles for fair use.

Anyways, it is perfectly proper to have a paid licensing regime if R-J decides to do this in the future. Maybe they should innovate in journalism commerce rather than advancing RIAA type shakedowns.


Sorry, zmous. You are completely and totally incorrect now, so I'm no longer interested in debating you.

The use of material in news reporting is absolutely part of the law. In fact, it is specifically cited. Here's the relevant portion of the federal law, followed by the link:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Unknown said...

It sounds like you're really just covering for your own infringement.

The copyright law has point number 3... "(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole"

That's the point. How much was taken out from the source? Otherwise, you'll have news organizations stealing and lifting materials verbatim from other organizations and just citing fair use as justification. You posted Sharron Angle's screen shots that shows substantial amount of material from the original article. You should do a word count to measure how much you taken.

I'm not even sure you can hide behind the newsworthiness of this blog. Why are you different than the other bloggers who were sued?

You could certainly take your case to the judge as every other victim will attempt to do, or settle with Righthaven.

RIGHTHAVEN MUST SUE. (And ask questions later).


Dude, I'm done debating you. The law doesn't say that every single one of those conditions must be met in order for it to be fair use, it says that any one of them can be. Newsworthiness qualifies. You said it didn't, I proved you were incorrect and rather than be able to acknowledge that, you move on to the next bogus argument. You're wrong. What's more, you're too scared to even put your name with your remarks BECAUSE you know you're wrong. I allow an awful lot of leeway on this blog for comments and I've let you be as cowardly as you wish to be thus far, but that's because I actually thought this was an intellectual exercise. But anyone who can't tell the difference between how I use material on this site for commentary and newsworthiness and a site that simply lifts entire pieces of copyrighted work for no actual purpose other than to say, "Hey this is neat!" isn't worth my time. Have a great day.