Judge Sticks Fork In Righthaven-RJ Model Thanks To Stupid Shermy

I really should have known.

Last year, I took the unusual step here and in the Las Vegas Weekly of supporting something that now-disgraced former Stephens Media publisher Sherman Frederick was up to. It surprised many colleagues, but I thought it showed a certain imagination that was both surprising and admirable.

But I should have known. If Frederick was involved -- and especially if he related to the Internet -- then it couldn't possibly be executed properly. And because it wasn't, what could have been an innovative and valuable method of contending with rampant copyright theft on the Internet is probably dead. It is extremely unlikely others will try it now.

The general idea had been that R-J owner Stephens Media assigns over the copyright to R-J work and then this Vegas-based firm called Righthaven, run by public relations moron Stephen Gibson (left via CalvinAyre.Com), would file lawsuits seeking to punish folks all over the Web who believed that they could steal it and post it on their own sites without paying for it. Many whined that it was cruel, that the thieves deserved a warning to pull down the material before they needed a lawyer, and in many cases the lawsuits were filed against very small entities whose readerships were hardly any bigger than what mine would be if I cut something out of the paper and hung it on my fridge.

Still, as a freelancer whose work has been dramatically devalued by a Web culture that believes that anything anywhere is free, I admired the creativity here. The problem is just too extensive to be cost-effective to address internally, so Stephens Media created a profit motive for someone else to behave as their enforcer. Several lawsuits were ham-handed and Gibson never quite understood that a newspaper has certain unusual elements; you don't go suing people who give you terrific scoops just because they posted a copy of the scoop's story, for instance, and you lose the battle in the court of public opinion when you sue cat bloggers or people with mental disabilities.

But when other major news organizations or other journalists who should know better rip off your content, it seemed to be fair game. And it was because of me that we got some of the most entertaining wrinkles in this story, the wonderfully timed lawsuit against Sharon Angle and the efforts to go after several massive sites because of use of the awesome but utterly inaccurate Vdara Death Ray graphic.

Ahh, but I overestimated Sherman Frederick by a factor of many. He wanted to have his cake and eat it, too, and, as usual, everything he touches turns to sand. Good luck, Hawthorne, Eureka and Ely!

Yesterday, a Nevada judge pretty much pulled the plug, declaring that the whole arrangement had been unlawful and announcing he's considering fining Righthaven and Stephens for taking the courts and more than 200 defendants on a bit of a ride. The problem?

Well, Stephens never actually, truly and fully gave up the copyrights. They wanted to give Righthaven the ability to pursue these lawsuits but not real ownership over the material. And then Righthaven opted not to disclose in court that there was a profit-sharing element to these suits and that the R-J was a third, interested party. Here's David Kravets of Wired.Com with the explanation:

[The judge] suggested Righthaven likely duped other judges to allow lawsuits on behalf of Stephens Media copyrights to go forward.

“Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this district,” Hunt ruled. “Accordingly, the court orders Righthaven to show cause, in writing, no later than two weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the court.”

An internal agreement between Righthaven and Stephens Media gives the Review-Journal’s owner and Righthaven each a 50 percent stake in any settlements or verdicts. The accord said Stephens Media shall retain “an exclusive license to exploit the Stephens Media assigned copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to exploit or participate in the receipt of royalties from the exploitation of the Stephens Media assigned copyrights other than the right to proceeds in association with a recovery.”

So here's the thing: Holy shiz. What possible reason did Righthaven withhold that the R-J was interested party or what the business arrangement was? If I recall correctly, Gibson always claimed that such information was "proprietary," that it was the secret sauce of his business model. Except that EVERYBODY ALREADY KNEW that this was the arrangement, everybody except, officially, the court. And the financial deal turned out to be ... a 50/50 split. What's so secret about that? That's what everyone would have assumed, right?

So now, as a parting gift to Stephens Media, the disgraced former publisher Sherman Frederick has left a legal morass that may haunt the company for years and cost it considerably more in legal fees and potential judgments than this arrangement would ever have brought in. If I were allowed, I would honest-to-God consider flying in from my Michigan fellowship to see an inept Frederick fondle a coffee cup while being vivisected on a witness stand over this, so stupid a screw-up was this error.

And the saddest part is that copyright theft on the Internet is killing the media. It's very dangerous. The actual complaints being made by Righthaven, in many instances, were perfectly valid and I was glad someone was making them. This judge is NOT saying that they weren't meritorious.

No, he's saying something worse, that Sherm and his partners were sloppy idiots who failed on a major technicality. And I guess I should've known they would.

There is one promising post-script, however. The Review-Journal, which had really only covered their own unique copyright lawsuit campaign when they sued Angle, did cover this decision. You know, like a newspaper should. And, as of this writing, it's the second-top story on their website, so they're not burying it. Carri Geer Thevenot even got sniveling comments from Gibson such as:

"It's important to recognize that Righthaven respects the judiciary and respects judicial decisions."

Also:

"We certainly hope that we will be given that opportunity with respect to the other cases that have standing at issue. But that is with absolutely no disrespect to Judge Hunt and his decision."

It's quite unlikely that Thevenot would've been able to cover this quite so properly if Sherm were still in charge. So there's that.

R-J Finally Covers Its Own Copyright Efforts

With the exception of some commentary by publisher Sherman Frederick -- and on his blog, not in print, I believe -- the Review-Journal has not covered its own unusual and very newsworthy efforts to enforce its copyrights via a large spate of lawsuits against all sorts of websites. That has been left to Steve Green of the Las Vegas Sun, who has done a terrific job.

Until today.

The decision to sue U.S. Senate candidate Sharron Angle for $150,000 and ownership of her domain name, it seems, tipped that balance. That moves this matter into a campaign issue rather leaving it as just a journalistic or technology story, so today courts reporter Carri Geer Thevenot put it in print.

Unfortunately, she allowed Righthaven LLC CEO Steve Gibson to reference me incorrectly and didn't provide me any chance to respond, nor did she quote from this blog the passages that would contradict him.

"Hopefully, Mr. Friess will understand that our present action against Ms. Angle demonstrates that we don't follow a political agenda," Gibson said.

Huh? I never said otherwise. In fact, what I said was that because they have shown they wouldn't discriminate on that basis, they were dutibound to follow through on this. On Aug. 23, I wrote:

The Righthaven approach is to sue first, ask questions later and Gibson has been proud of not taking an ideological slant in which sites they attack. This means even if Angle takes these down, they still must sue her and pursue damages.

See? I just thought it would make for a fascinating political sideshow. I had my doubters, of course, but I was right. And that's always fun.

The R-J's first entry here was a straightforward courts story, though, and it lacked any balance other than an attempt to reach the Angle campaign for comment. What Carri didn't do was contact experts in copyright or Internet law to find out or explain to readers how unusual, controversial and legally confusing this effort is. And, by the by, yesterday Righthaven also won a legal victory in which a judge refused to dismiss the lawsuit against a Texas website owner accused of infringement. So at least that could have been mentioned, even if the news broke too late to do the other sort of coverage I just mentioned.

The Angle campaign didn't respond, but Thevenot might have taken notice that they have, in fact, removed the full stories from their site and provided a link after a few paragraphs to the ReviewJournal.Com. Here's an example of what it looked like then...


...and now:


It's also disappointing that Thevenot had access to people who could answer some important questions and either didn't ask or couldn't get those answers. For instance, why did they only sue the campaign for the two pieces when I counted at least half-dozen? Will they now be going after the Cosmopolitan of Las Vegas, too, and risk angering a potentially very lucrative advertiser? Have they let the Las Vegas Advisor suit languish in order to preserve the source relationship between Anthony Curtis and R-J journalists? On what basis have they settled with some of the defendants?

Also, while I support efforts to enforce copyright, I am skeptical that Righthaven can wrest away a domain name that contains someone else's intellectual property, i.e., someone's name. There is case law on this, as I cited in the prior post. They may be able to sue and even shut down a website, but can they seriously come to possess SharronAngle.Com? And why would they even want to?

Maybe now that the R-J has begun to cover itself, we'll get the answers. In the meantime, let's see where it goes. By not commenting, of course, Angle's side has guaranteed this story gets a few more news cycles before it quiets down, if it does at all.

Three Weird Tuesday Items

See that? Evidently, the Blogger Gods have removed a post on this site because someone -- they won't say who -- has determined that something in it violated someone's copyright under the Digital Millennium Copyright Act. The post in question is a May 2009 blog item announcing the release of that week's episode of The Strip Podcast featuring Carlos Santana. It was my usual drill - a short personal note, the link to the show, an image of the guest and a list of links to stuff we discussed in the show.

There's nothing in the post that could even vaguely be construed as being owned by anyone else except, maybe, the image of Santana, but that was a publicity shot provided by The Joint at the Hard Rock. So what gives?

How the hell would I know? The "takedown" email from Google, which owns Blogger, does not indicate what is being called into question. Instead, it directs me to a site called ChillingEffects.org, which anonymizes and posts complaints. Except that there's no complaint anywhere there.

What's more, the instructions for asking Google to dismiss or reverse the claim actually includes language in which you must acknowledge guilt and corrective measures. One of the steps requires your letter to them to include this statement:

"I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."

Huh? I don't even know what they think needs to be removed. Weird, right? I followed the instructions and faxed a letter to the number in the instructions. We'll see what happens.

And now something else weird. Today's R-J carries a piece from Carri Geer Thevenot about David Lockhart, a New Yorker who sued the Venetian for false imprisonment and a few other bad deeds. Lockhart alleged that in 2004 Venetian security accused him of being in a car involved in a hit-and-run, then forced him to retrieve his stuff and leave his room at the hotel. When he refused to pack up, they cuffed him, shackled him to the floor in a security room and later took him to the local jail where he was held for hours before charges were dismissed.

The case went to trial and found the hotel "committed assault, battery, false imprisonment, intentional infliction of emotional distress, breach of contract and breach of an inkeeper's duty.

The weird part: The jury awarded him $200,000 but no punitive damages.

That's weird, right? The jury bought his story. They agree all these awful things happened to him. But the Venetian should not be punished? The only thing I can think of is that maybe the car he was in was, in fact, involved in the hit-and-run. Thevenot's piece never says.

Finally, a third weird thing for today. I'm generally in love with New York Times columnist Gail Collins. She's far more clever and funnier than her colleague Maureen Dowd thinks she is and Collins -- gasp! actually has a point when she writes. But an April 9 column by Collins that appeared only today in the Las Vegas Sun about the problem of Sarah Palin sucking the oxygen out of the political debate included this random thought:

(If Sarah Palin was seriously planning a presidential run, do you think she’d have agreed to be speaker-for-hire at the Wine and Spirits Wholesalers of America Convention at Caesars Palace in Las Vegas this week?)

Those parentheses were in the original column. But any which way, this is a very weird notion. What part of that disqualifies Palin? That she's a paid speaker? That she appeared in front of the booze industry? Or that she did both in Vegas?

I can't figure it out. Is the wine and spirits industry somehow anathema to the Religious Right? Maybe to a microscopic segment of teetotalers, but most religious observers have some use for wine, right? Wasn't it doing shots at a Pennsylvania bar that was supposed to make Hillary Clinton seem more common, more in touch with the centrists and even conservatives of the heartland? And who's going to make an issue out of her speaking to such a group in Vegas, anyway? Obama's not so stupid, I hope, as to insult us a third time and I'm pretty sure every leading Republican has given paid speeches to trade groups in Vegas in recent years.

It would seem like a small point, but a New York Times columnist that I admire seems to think this is grounds to end speculation of Sarah Palin's national political potential.

Weird, right?