Suing bloggers for dollars

Originally posted 2010-07-23 10:58:24. Republished by Blog Post Promoter

Interior of rotunda, New York Supreme Court, New York CountyGlenn Reynolds links to a an article in Wired about a newspaper “chain”‘s — actually, lawyer Steve Gibson’s — “new business model”:  Suing bloggers who post newspaper articles, evidently more or less intact ones, on their sites.  Glenn says suing bloggers “seems like a poor business plan” — mainly, of course, because most bloggers are broke, or pretty close to it.

The article also explains why these one-off claims by outfits such as the Las Vegas Review-Journal are unlikely, in the long run, to pay off.  One reason is that at least the music industry, through the Recording Industry Association of America, is theoretically going for some degree of bulk in its litigation trawling against unlawful file sharing.  And we did say “theoretically”:  Remember, in 2008 the RIAA managed to spend about $16 million on legal fees to reel in a whopping $391,000.  As the article says, “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

So, yes, it is hard to comprehend the return on investment here.

There are other reasons this doesn’t seem to make sense.  “Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages,” says the article.  But no, not quite on the “whopping damages” stuff.  Contrary to myth — and to the threats routinely uttered by copyright plaintiff attorneys — statutory damages are not meant to be a windfall, as I explain at some length here.  Now it is true that some juries think intellectual property infringement damages are a jackpot unrelated to actual harm — usually because judges don’t instruct them properly.  But other judges in high profile cases are refusing to be part of the copyright shakedown.  Thus in the recent Tannenbaum copyright case, the District Judge reduced the jury’s damages award of $675,000 for infringement of 30 songs to $67,500, ruling that the amount awarded was unconstitutional under the Due Process clause.

Still, $67,500 is a lot of money, a lot, and still pretty darned distant from any plausible quantum of loss to the copyright owner.  And that’s even before statutory attorneys’ fees — mandatory for infringement of a properly registered copyright.  (Don’t get me started on that.)  That doesn’t mean, however, that the plaintiffs are happy with that amount; unsurprisingly, they’re appealing that ruling.  A precedent like that would just, if you’ll let me be old school, keep skipping like a broken record if they didn’t do something about it.

On the other other hand, the damage to the market value of a copyright-protected work is a criterion courts are supposed to consider when awarding statutory damages for infringement.  And while the ratio to damage caused by the infringement and statutory damages in the Tannenbaum case is out of whack at either of these orders of magnitude, at least there is still some market for big-label music.   In contrast, there’s barely any market for fresh news at all — i.e., people really don’t expect or want to pay for it, and they don’t.

That’s not because they can steal it, but because there are so many free or very low cost substitutes for mainstream media available today.  And that’s going to be even more true for the mainly warmed over or in some cases really old newspaper stories that seem to be the subject of this copyright “enforcement” sweep.Essex County Hall of Records

Yet some meaningful percentage of these cases will settle because it’s cheaper to do so than to engage defense counsel, and because, well, a lot of these cases involve something we call copyright infringement.  As I’ve said before, bloggers are wrong to infringe copyright even if they’re just cute little bloggers, and reprinting an entire newspaper article, or a good portion of one, is just about never fair use and thus exempt from an infringement claim.

It is unsurprising that most bloggers are callous about copyright.  It has little to do with their work product, for reasons I explain very succinctly here.  But they’re wrong to be.  And, really, exactly whatever  Gibson’s ROI turns out to be — and you can be sure that, unlike Jenner & Block and Cravath, the tip-top law firms charged with the RIAA’s brilliant litigation campaign, he’s not getting paid via Brinks trucks — it’s not our problem.  When an infringing blogger gets served with a summons and complaint, he’s going to have to pay to make it go away, and the only thing Gibson’s going to want to know is how much-a-you-got.

What kind of business plan is that?

UPDATE:  Lots of interesting stuff on this out there now.  This one by Maxwell S. Kennerly, Esquire, is interesting enough to make me overcome my reluctance to link to a LexBlog “blog”.  Kennedy wisely asks why are essentially de minimis claims in front of Article III judges at all.  Why, indeed?  (Hat tip to Walter Olson.)

UPDATE, VEGAS STYLE:  Much, much more here from Ryan Gile.

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Author:Ron Coleman

I write this blog.

34 Responses to “Suing bloggers for dollars”

  1. July 23, 2010 at 12:57 pm #

    Worse, Righthaven filed actions without first demanding removal of the copyrighted material. This meant that unintentional violations of Fair Use (which is easy to do, since Fair Use is extremely variable depending on context) didn’t get a chance to fix the problem before getting hit for $75,000. Now I need to hire a lawyer to represent me on something that would have taken simply a request (polite or otherwise) to fix.

    If you want to know why lawyers are considered scum of the Earth–it’s actions like Righthaven’s.

  2. July 23, 2010 at 1:15 pm #

    Actually, you’ve only explained, Clayton, why Righthaven is “scum of the earth” — not its lawyer.

    The fact that they didn’t request removal before suing will not, IMH-not-your-lawyer-O, redound to your detriment. To the contrary, I think most judges will see right through it.

  3. Robert B.
    July 23, 2010 at 1:26 pm #

    Ron: If the suit is thrown out because of the lack of a removal request, would Clayton have a shot at countersuing for his legal fees?

    Clayton: Did they ever actually serve you with the suit? You’re “good-bye post” last night said you heard about it from a reporter.

    • July 23, 2010 at 5:17 pm #

      Oh, Robert B., I did not mean to suggest it could be “thrown out” because they didn’t ask them to remove it. They are not required to do so. But it will be pretty obvious to the judge, and if in theory it were to go this far, to the jury, that this was not an attempt to solve a problem — “Oh my, they’re using our material!” It was an attempt to file the suit and get those scary statutory damages claims well into the mix.

      Ah, pardon my ignorance, Mr. Cramer. I didn’t quite pick up on that. (In our parts, law firms are not allowed to have such funky business names.)

      Everyone is working every angle to squeeze value out of the system, Mr. Cramer. And lawyers (other than class action plaintiff lawyers, I guess) ultimately need clients… and judges… and legislators… uh, juries, too…

      Zombyboy, the question of what constitutes fair use in copyright is almost always a judgment call. But I’d start here to understand the fair use criteria courts look at to decide whether or not a use is a fair use.

  4. July 23, 2010 at 2:06 pm #

    Hmmmm.

    Very interesting. A few points:

    1. Under those circumstances bloggers will simply refuse to copy and link back to any source that contracts with Righthaven. The result of this is that those sources will suffer decreased linkages, reduced Google and other search engine rankings and will suffer reduced advertising rates accordingly.

    2. There might occur a multi-tier linking and copying system where a 2nd tier will create an article that does comply with Fair Use with respect to a 1st tier article that all subsequent tiers will then link to.

    The result of this is that the 1st tier publisher would have made the effort and expense of actually creating the property involved but it will be the 2nd tier that will most profit from it. And in an entirely legal way.

    As is there are quite a few of these types of websites who are operated as news aggregators such as breitbart.com who will very likely become even more profitable in the future.

    3. I seriously wonder at how much real financial damage could possibly accrue from the copying & linking to an article from say a year ago. Additionally could a blogger argue that the link to the publisher’s property by the blogger be included in any calculation to offset damages?

    4. Amusingly enough quite a few commercial media corporations are now literally stealing content created by bloggers. Normally bloggers don’t have the financial ability to pursue copyright infringement cases … but now with Righthaven there is an established business entity fully capable of taking on, and taking down, some of the bigger corporations simply by signing a contract.

    Karma, sharp is thy sting! lol.

  5. GregS
    July 23, 2010 at 3:20 pm #

    You know an industry is a few steps away from death when they turn to suing the users of their products as their new revenue stream.

  6. July 23, 2010 at 3:38 pm #

    What I’m trying to figure out is precisely what the company is going after. Is it just folks who post complete articles? Or it is posting even a portion of an article without attribution?

    What constitutes fair use, in a legal sense, when it comes to blogs quoting and commenting on newspaper content?

  7. July 23, 2010 at 3:40 pm #

    Righthaven is strictly a law firm. Its lawyer and Righthaven are one and the same. I’ve wanted to branch out from writing law review articles on Second Amendment issues (cited in Heller v. D.C. (2008) and McDonald v. Chicago (2010)). Now I have a strong incentive.

  8. JAL
    July 23, 2010 at 4:29 pm #

    What I want to know Mr. Cramer (and copyright lawyer above), is what they want your DOMAIN for? If I read it right, they want your domain name also.

  9. July 23, 2010 at 4:51 pm #

    As the comment on Prof. Reynolds site indicates it’s not only that many bloggers are of little means, Dead Tree Media’s entree into the web is an effort replace revenue lost by diminishing sales of physical paper. That they have no idea how traffic is generated and hence revenue is made is apparent by their pursuit of copyright violations. Which is a completely different animal then illicitly downloading the latest U2 album.

    The Journal-Record is what I am now calling a “hand biter”. They are going after the very people that will generate the traffic they need to stay in business. In fact, I ought to set up a blogspot named “hand biters” to list all the DTM outlets that are going after bloggers such as Mr. Cramer.

    As for punishing those who download songs and don’t pay for them I think the RIAA should look at the example of Baen Book’s Free Library. It has been extensively documented that authors who have put up free books there have seen an increase in sales. Slapping some kid with ten’s of thousands of dollars in fines does not make me excited to go out and buy more CD’s.

  10. PakviRoti
    July 23, 2010 at 7:18 pm #

    Hmm. Maybe, someone could suggest a nighttime tour of the desert to Mr. Gibson. I hear the stars are wondrous.

  11. July 23, 2010 at 10:24 pm #

    Righthaven sells itself as being an expert on the DMCA law – but the suit against AboveTopSecret.com seems to show an ignorance of the law (assuming Irvine’s POV is more truthful).

    Doesn’t Righthaven set itself up for either a frivolous lawsuit settlement from AboveTopSecret.com or – if the money doesn’t pan out – from a fraud lawsuit from the Las Vegas Review-Journal?

  12. July 25, 2010 at 11:03 pm #

    “What I want to know Mr. Cramer (and copyright lawyer above), is what they want your DOMAIN for? If I read it right, they want your domain name also.”

    Either they are under the illusion that it is a source of money (and I don’t actually own the domain–the other defendant does), or that we are so attached to it that it will be an incentive to settle cheap. I still haven’t found an IP attorney licensed to practice law in federal court in Nevada.

  13. July 25, 2010 at 11:13 pm #

    “Ah, pardon my ignorance, Mr. Cramer. I didn’t quite pick up on that. (In our parts, law firms are not allowed to have such funky business names.)”

    Well, but then again, you probably see what you do as a profession, not a money-grubbing venture.

  14. July 25, 2010 at 11:31 pm #

    Thank you.

    I do. I’m not all that bad at what I do but I don’t grub very well at all.

  15. July 25, 2010 at 11:50 pm #

    The difference between a profession and a business is the notion of public service. I know that there’s no statutory obligation to send a demand letter before filing an action, but perhaps there needs to be. It’s not like federal judges are sitting around, twiddling their thumbs, waiting for something to do.

  16. July 28, 2010 at 12:28 pm #

    Thanks for the link, I’ve had Likelihood of Confusion in my Google Reader for ages. I’m not sure how I missed your article before posting my own, which I’ve updated to link to your’s. I’m baffled on the economics of it, too, but if they’re selective about defendants — e.g., cherry-picking the ones likely to actually pay, the exact opposite of what the RIAA and MPAA do — then I can see it posting some return.

    Two other points:

    (1) My last name is “Kennerly,” not “Kennedy.” It’s a common mistake.

    (2) Your reluctance to link to some LexBlogs is understandable, but some of them are quite good, e.g., The D&O Diary. More to the point, I’m very happy with it as a service — it’s a turn-key solution that’s reliable and professional without me doing much anything but posting.

    • August 1, 2010 at 10:39 am #

      You’re welcome. I am sorry for the error with the name! I don’t even remember “thinking” Kennedy — I guess my fingers have a mind of their own.

      My problem isn’t entirelywith the concept of LexBlogs, or the quality. It’s that they don’t, as a rule, to link to non-LexBlogs blogs or acknowledge their existence. That’s not how I think we should operate as bloggers. I have no problem following why they’re set up that way, as a business model, but by and large if that’s the deal then I guess I’ll link to them only when it makes “business sense” for me, too.

      If the posts are that good, as yours was, it does! ;-)

  17. JusTheFacts Please
    August 9, 2010 at 1:34 am #

    These lawsuits are nothing more than extortion, and the actions of Gibson & his firm are as underhanded and as vile as those used by the mob, thugs, and street gangs. I personally know two website owners that have recently been sued by Gibson/Righthaven for violating ‘fair use’. Righthaven not only did not give a take down notice before demanding cash, they also obtained the copyrights AFTER the articles had been used on the sites (of which the articles had been given credits and links had been provided to the orig articles). The two owners of the sites that I mention are by no means making money with their web sites, they are indeed scraping up just enough cash to pay for their hosting & domain names. They run their sites strictly for the passion of their hobbies/beliefs. They are currently attempting to raise cash from their readers in order to get these thugs off their backs.
    As an aside; one of the websites I refer to has a tremendous amount of traffic. Not knowing the exact verbiage used in the lawsuit; makes me wonder if they are also going after the domain name of that site.
    Aside #2; On May 20, 2010 he (Gibson and/or firm) applied for a U.S. federal trademark registration for the name “Who’s Arrested”. Associated with this name are two websites; lasvegas.whosarrested.com & miami.whosarrested.com. On both the sites there is a FAQ page. Within the FAQ pages, one of the FAQs is “how to get a name removed from this site”. The response is that one does not get it removed unless one requests it removed and said request is accompanied with a judge’s order, OR they do offer profile anonymization (their term, their spelling), which will remove the name/profile from public access and restrict it from appearing in search engines. How does one get profile anonymization? Easy!! Pay thru the nose! Profile anonymization is a ‘service’ offered by whosarrested.com which will remove the name/profile from search engines for a fee (of which they do not disclose the amount of this fee). They go on to include that even if the arrest was false, charges dropped and/or sealed they will not remove a name/profile as that is beyond the scope of the site. So, in the event that one does not have a judge’s order, and no matter what the situation with the arrest, unless their service of anonymization is requested and cash handed over, they will not remove a name/profile. Further, even if one pays for this service, they go on to explain that corporate and community members of the site will have access to your anonymized arrest record!!
    Another FAQ;
    Q: I have a profile on this site but I have never been arrested, why? The answer: If you see your name on the site, and you have never been arrested then the person/profile is not you.
    Also mentioned is that the site was built to work well with search engines, and that every name listed on the site will appear in search engines.
    Hence, these bottom feeders will gladly see to it that one’s name does not appear in search engines if one gives them cash!!
    Gibson truly does besmirch his profession.

  18. giordano
    September 7, 2010 at 7:27 pm #

    i think steven gibson guy is asking for rule 11 sanctions…

    he’s bragging to the media about his “new business model,” basically admitting he’s filing experimental lawsuits in federal court. what a dumbass.

  19. David Helson
    September 12, 2010 at 5:52 pm #

    This is not about money.

    This is the combined forces of the Clinton’s Daddy Warbucks, the Stephens family, and Michele Obama’s former law co-worker, working to freeze right-wing bloggers long enuff to preserve a Dem majority this November.

    A haven from the right.

  20. bob dobb
    August 26, 2011 at 11:52 pm #

    Help me out, I’m not an attorney,
    Isn’t Gibson’s website whosarrested.com illegal? I think it’s fine to have an inmate records website, and even make money from ads or whatever, but doesn’t Gibson venture into the area of blackmail if the apparent purpose of his website is to tailer web search results so that those that pay him are seen in a better light, and those that don’t are having a spotlight shined on embarrassing info or info that biases?

    I mean aren’t there people[business associates, dates, potential employers] that filter according to “when I Google ‘[your name] criminal record’, does anything pop up?”, without asking what it is? Some employers don’t even know how to do a proper arrest record search so they only use google, and thus they are presented with very different results than if they went to government websites and searched, because many of the googled(whosarrested) results are hidden due to Gibson’s scheme. You could have two people applying for an interview, and the guy with more serious crimes gets the job because he paid whosarrested, but the guy with the traffic signal infraction misses out…

    I am on whosarrested when I ran a red light in Vegas, then failed to go to court[no other infractions in years]. The arresting officer almost couldn’t believe that I had a bench warrant for a traffic signal ticket(if the city needs money, the city needs money I guess). Anyway, I am suffering since I am looking for work, until I pay Gibson’s extortion fee. On principle, I also hate paying a shake down artist.

    Does anyone want to fight him in court, or open another website ‘fairrecords.com’? I’ll provide the first $100.

Trackbacks/Pingbacks

  1. Walter Olson - July 23, 2010

    Suing bloggers as newspaper business model? http://is.gd/dDFgt [Kravets, Wired] http://is.gd/dDFf7 [Ron Coleman]

  2. Adrian Lurssen - July 23, 2010

    RT @RonColeman Suing bloggers for copyright dollars http://bit.ly/9WWkrF | LIKELIHOOD OF CONFUSION®

  3. Tim Baran - July 23, 2010

    Good read RT @RonColeman Suing bloggers for copyright dollars http://bit.ly/9WWkrF via @JDTwitt

  4. Rebecca S Yoshitani - July 24, 2010

    Bloggers beware! Suing bloggers for #copyright dollars http://bit.ly/9WWkrF from @RonColeman (via PTOlawyer) #socialmedia #in

  5. lisa mcgrath - July 24, 2010

    Suing bloggers for copyright dollars. http://bit.ly/9WWkrF (by @RonColeman h/t @uMCLE)

  6. Bryan Beel - July 24, 2010

    RT @tweetmcg: Suing bloggers for copyright dollars. http://bit.ly/9WWkrF (by @RonColeman h/t @uMCLE)

  7. Tim Baran - July 24, 2010

    Hi @RonColeman finally read entire post "suing bloggers for copyright" and was reminded of what a great writer you are! http://bit.ly/9WWkrF

  8. netlex - July 25, 2010

    Suing bloggers for dollars http://bit.ly/9uCD6c Ron Coleman's Likelihood of confusion

  9. Suing Bloggers | Snowflakes in Hell - July 25, 2010

    [...] Some interesting commentary from an IP lawyer on the whole Righthaven thing. He doesn’t think their business model is viable either, and they won’t likely have any more success than RIAA did with their lawsuits. My main beef with Righthaven is not so much that they are defending their copyrights, but that they immediately resorted to a lawsuit without first trying to resolve the issue decently. [...]

  10. July 26 roundup - July 26, 2010

    [...] newspaper business model: copyright lawsuits against bloggers? [Kravets, Wired, Ron Coleman, TechDirt, [...]

  11. Curt D Miller - July 27, 2010

    Ron Coleman's LIKELIHOOD OF CONFUSION® | Suing bloggers for …: Bloggers are wrong to infringe copyright ev… http://tinyurl.com/34vwoe6

  12. Robin S Morris - July 27, 2010

    Ron Coleman's LIKELIHOOD OF CONFUSION® | Suing bloggers for …: Bloggers are wrong to infringe copyright even if … http://bit.ly/aiQHmg

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