Why We Won’t Link To Denver Post, Las Vegas Review-Journal, Salt Lake Tribune, and Several Others

Jim Burroway

May 2nd, 2011

The basic mode of internet debate and information sharing is pretty simple. People read things they find interesting, and they post what they find onto blogs and other web outlets for others to read and comment on. Quoting is an integral part of that process — that and linking; hyperlinks are the defining feature of the world wide web. Quoting and linking, as the Electronic Freedom Foundation observes, allows online discussions to thrive by “showing others the original text before adding a commentary or response. Accurate quoting is a virtue of Internet discussion that can minimize mischarcterization and support progress in a debate.”

This business of quoting and linking, which is a far more accurate way of sharing information than what might pass for social media in previous decades — picture your grandfather swapping stories at the barbershop or your mother at the hairdressers — has dramatically changed the way we access information in the 21st century.

Newspaper chains, in particular, have struggled mightily with this changing environment, and not altogether successfully. Some journalists have come to view bloggers as parasites. They say bloggers wouldn’t exist without the reporting done at newspapers. I think that is an exaggeration. At BTB, we do try to provide our own analysis and, in some cases stories, which are independent from what we find in the news media. But to be certain, probably about 90% of what we post has as its origin a story we find published in a newspaper, television, radio, or other online news organizations. And when we find those stories, we provide direct quotes (often in the form of blockquotes) with links back to the where we found it.

We believe that this practice is important. By providing blockquotes, we let the source material speak for itself without any inadvertent inaccuracies or biases which may creep in if we were to paraphrase it. And by providing links, we allow you, the reader, to click through for more information. Of course, we cannot copy the source material in its entirety, nor can we copy major portions of it. That would violate copyright laws, which is a very serious issue. But copyright laws do allow us to copy small portions of source material for commentary and discussion purposes.

As I said, copyright laws — or more specifically, copyright lawsuits — are serious business. And now, three newspaper chains have discovered that filing copyright lawsuits can become yet another profit center. The problem is, their definition of copyright infringement not only contradicts copyright law, but also poses a serious threat to bloggers and other online outlets everywhere.

Righthaven LLC is a copyright holding company which acquires “rights” to newspaper content after finding the content published on other web sites without permission, and files lawsuits against those web site. Righhaven was created as a partnership with Stephens Media, publisher of the Las Vegas Review-Journal, and their business model rests entirely on suing web site owners and operators for extravagant “damages” as a shakedown exercise. (“Rights” are in quotes, because, contrary to what is required under copyright law, Righthaven doesn’t actually acquire any legitimate copyright “rights,” which is yet another problem with their business model.)  Two other newspaper chains, WEHCO Media and Media News Group have entered into agreements with Righthaven to split the profits from lawsuits stemming from their respective newspapers’ contents.

The three newspaper chains partnering with Righthaven represent some very important voices in the newspaper industry, including the Las Vegas Review-Journal, Denver Post, Salt Lake Tribune, San Jose Mercury News, Oakland Tribune, St. Paul Pioneer Press, Detroit News, El Paso Times, Arkansas Democrat-Gazette, and Charleston Daily Mail.

What distinguishes Righthaven’s practices from more reasonable measures against copyright infringement is that Righthaven has never issued a takedown notice to any of their targeted web sites. Instead, the first inkling a web site owner has that there is something wrong is when he or she receives a summons announcing that a lawsuit has been filed in federal court. There is no warning whatsoever. And Righthaven’s demands are excessive: $150,000 for a single infringement and the surrendering of the domain name to Righthaven. That last demand, which has no basis in copyright law whatsoever, is the hammer Righthaven uses to extort money from some of the more significant web sites. Major victims include the Drudge Report, Democratic Underground, Free Republic, and Raw Story Media. Imagine if they had been forced to surrender their domain names. They would immediately cease to exist.

Righthaven’s tactics seem to be working. With the exception of Democratic Underground, the majors have found it cheaper and safer to safeguard their most precious property — their domain names — by paying thousands of dollars in undisclosed settlements — even when copyright law is on their side under what’s known as “Fair Use.” Those settlements are in addition to lawyer fees they’ve paid to defend themselves in the process. In other words, it doesn’t matter whether Righthaven has the law on their side. What matters is that merely by filing a claim in Federal court, Righthaven’s target is already out several thousands of dollars right out of the gate.

But Righthaven doesn’t go after just big name web sites. They’ve targeted hundreds of much smaller bloggers and web site operators in their shakedown operation. Most of these victims are not professionals, but run their web sites either out of personal passion or as a hobby. They, too, have been tapped for undisclosed thousands of dollars, all because they copied more than a couple of paragraphs or a photo. One blogger was an autistic teen. He’s on disability due to brittle diabetes requiring around-the-clock care. Another was a Gulf War veteran nurse who wrote about Gulf War illnesses and veterans issues. Most recently, Pam’s House Blend was hit with a drive-by lawsuit which, according to Pam Spaulding, has effectively bankrupted the web site.

While Righthaven hasn’t directly threatened BTB, the existential threat to this web site remains. Like everyone else, we scour the web for news and content that we believe will be of interest to our readers. As part of that effort, we never copy entire articles, but we do follow the common practice of excerpting blockquotes from the articles we find. This practice is in full compliance with U.S. copyright laws. But as I said, the fact that copyright laws are on our side is irrelevant. If Righthaven were to lodge a bogus complaint in Federal court against us, that act alone would be financially catastrophic.

Let me be clear: we do take copyrights seriously. We have issued informal takedown notices to other web sites that have posted our content illegally, and we’ve had satisfactory results with that approach — an approach that Righthaven obviously finds unprofitable. We fully accept the principles of copyright ownership, and we strive always to comply with the law. But sometimes mistakes happen. We may use a photo from another web site without knowing that the photo originally came from somewhere else. (In fact, that’s exactly what happened to Pam Spaulding.) Whenever we are made aware of a copyright issue, we will always make every effort to address the problem while maintaining our rights within the Fair Use parameters of copyright law. But what we cannot accept is Righthaven’s approach of going straight for litigation and threatening the very existence of its targeted websites through the forcible transfer of victims’ domain names.

And so to protect ourselves and this web site, we will no longer cite any content from Denver Post, Las Vegas Review-Journal, Salt Lake Tribune, or any of the other news sources listed here. There will be no links, no blockquotes, nothing. For the most part, it will be as if these sources simply don’t exist.

But if it happens that, for example, the Denver Post has an exclusive story that no one else has, we will do what the Associated Press does whenever the New York Times breaks a story. We will write about the story by paraphrasing the Post’s article, but we will not quote from it or provide a link to it — just like the Associated Press does. There will be however one tweak from standard AP practice: we will provide a link, but it will be to an explanation as to why there is no link. It will look something like this:

“The Denver Post (no link) reports blah, blah, blah…”

I’m not laboring under the delusion that these vast media empires will suddenly collapse due to a lack of links from BTB. This is not an economic boycott to bring these behemoths to their knees. Nor are we doing this in anticipation of starting a movement of other web operators to avoid these media outlets. Whether others follow in our footsteps will be their decision. We’re taking this step solely as an attempt at ensuring BTB’s continued existence.

We put in many hours for this web site, hours that we scrounge together whenever we can because we all have full-time jobs elsewhere. We don’t get paid for the work we do on BTB, but the work has nevertheless been rewarding in other ways. One reader introduced himself to me at an ex-gay survivor’s conference a few years ago by saying, “You’re the reason I finally found the courage to come out.” And just three weeks ago, I received an email from a reader in Africa who was responding to this post about George Oundo, who had been paid by Ugandan pastors to pose as “ex-gay.” This reader describes himself as an isolated gay man who is too afraid to connect with others in the local gay community. He wrote:

On an internal level, for many years I thought the ex-gay movement had tons of appeal and merit, especially during periods of heartbreak and during periods of rejection from anti-gay society, which includes almost all Ugandans and religious people I know. I first found BTB years ago when I was Googling “ex-gay” because, (like I still do sometimes) I was so tired of all the hate, the pressure and the loneliness which are often erroneously attributed to being gay. When I found BTB on Google, Dan Gonzales’ articles and videos helped me understand the ex-gay movement a lot better. But even with that progress, it’s a daily uphill battle just trying not to regress in hostile environments.

These readers are why we put in the many hours that we do for this web site. This work is too critical for too many people to allow it to fall victim to greed from the Denver Post and Las Vegas Review-Journal and others. With these policy changes, it is our aim to remain a clear and reliable voice for the LGBT community worldwide, to the best of our meager ability and for a long time to come.

Lucrece

May 2nd, 2011

This is the kind of garbage that makes it clear who the courts work for.

When the rich have means to pursue their interest and the non-wealthy can’t even get free defense in court, maybe Hugo Chavez’s would be comical coined term “Savage Capitalism” actually comes as less comical and more sadly real.

occono

May 2nd, 2011

Wow.

Andrew

May 2nd, 2011

Disgusting.

Ben M

May 2nd, 2011

The good news is that the court in Colorado has started to slap down these lawsuits.

BJohnM

May 2nd, 2011

I guess what I have a problem with is why any judge would let a case go forward unless/until there is a showing that a takedown request was sent, received, and ignored. There is always supposed to be some reliance on reasonableness. Maybe we should all call the editors of those papers, and ask why they are bankrupting people like Pam.

Patrick Hogan

May 2nd, 2011

Thank you for your continued efforts, especially with the risks on the rise. My story involves much, much less hardship than the story you shared above, but your website was one of a few blogs that was instrumental in my process of coming out. And I am certain that I would be much less well-informed, much less critically minded when it comes to the anti-gay rhetoric that’s out there, if your site did not do the work that it does.

Thanks again!

Mihangel apYrs

May 3rd, 2011

The media owning the perogative of whores power without responsibility, it neither sows nor spins but makes a packet out of it.

If any are parasitic it is the papera and journalists who observe and would watch a child die to report it rather than help that person.

customartist

May 3rd, 2011

Thanks for this sadly enlightening information.

2 thoughts:

1.) Has there been a fund created for the defense of Pams House Blend? There may be many within our community who would be capable of assisting, however emails to that site have gone unanswered, unfortunately.

2.) Shouldn’t Credible News Sources be as concerned about this practice as anyone? What about CNN for example? Here’s their contact should anyone care to suggest that they investigate/report on this phenomenon:
http://www.cnn.com/feedback/forms/form11b.html?8

Keep up the good work. You are surely appreciated.

Chris

May 3rd, 2011

Thanks for all your work! It is appreciated!

Ben in Atlanta

May 3rd, 2011

Randi Kaye had been swapping emails with Pam about something else recently. If I pass her in the halls I’ll ask her if she or someone else is working on a Righthaven story. What happens on the blogs does have a way of winding up on air or on .com

Theo

May 3rd, 2011

A few things are unclear from this post:

– What exactly is Righthaven claiming to constitute infringement? The link, the block quote, or the two in combination? Unless the quote constitutes a significant part of the whole article or perhaps the link leads to an unauthorized copy of the article, I can’t see any basis for an infringement claim.

– Why would the more established blogs be the ones to cave? These are the very blogs that have attorneys who can advise them that the claims are meritless. Also, they are far more likely to have liability insurance that would cover defense costs. Seems upside down to me that the big players would pay. Even if it were cheaper to pay a few grand in any particular case, they would have to worry about repeat suits, and should be more likely to fight it.

– The 150K demand is bull. That is the maximum statutory award permitted under the Copyright Act, but even in the unlikely event that they could prove infringement, there would be a remote possibility of their getting 150K for a block quoted article. The minimum award is $500 or $750, depending upon whether the infringement was innocent or willful.

AdrianT

May 3rd, 2011

This is a disgrace. If such newspapers print falsehoods – and if they cannot be criticized, it simply means direct action is needed: protests at their HQ, or setting mice free in their offices.

B John

May 3rd, 2011

There are already rats in their offices Adrian…they’re called publishers. (Sorry, that one was just too easy.)

What appears to be happening is that photos (which seem to make the rounds, and then get captured by Google lose their attribution along the way, and if Righthaven finds one in use, they sue. If it’s merely a block quote, they sue. They file in court well away from the owner of the blog, so, you can either spend a fortune fighting the case (which you will probably win, but could lose), or you spend a fortune settling. The options aren’t good, and that’s their game plan.

The best way, I think, is to call the Editors of those papers, and politely and calmly ask if they inadvertently misued a photo or a quote, would they prefer to slapped with a lawsuit filed out of state, or the courtesy of a “take down request.” When they answer “take down request, ask them why then they associate with Righthaven.

Then explain to them that while you understand and respect their right to potect their copyrighted material, you believe there is a wrong way and a right way to conduct business. Then explain that you too have the right to contact their advertisers and explain to them why you will not only no longer be able to see their ad, but why you will no longer be shopping with them.

Let one or two regular advertisers call up the sales manager, and I suspect you’ll see them dropping Righthaven pretty quick. While I’m sure this is a revenue stream, I can’t believe they’re making that much off it, as I suspect Righthaven and their ambulance-chasers are keeping most of the money.

Timothy Kincaid

May 3rd, 2011

This is similar to a scheme that a few law firms were running in southern california.

There were laws on the books that allowed a law firm to sue businesses for minor health code violations.

The lawyers would troll state agency Web sites for lists of alleged violations of small-business codes, such as restaurant hygiene infractions. They would sue the businesses on the lists, which are notoriously preliminary. Then they would contact the defendants with offers to settle for a few thousand dollars a pop. Since most of their victims didn’t have the wherewithal to hire their own lawyers, and had little experience responding to formal legal complaints, this scam began to look like a new frontier in legal extortion and a distinctive California scourge, like medflies and recall campaigns.

After the John and Ken show (a very popular talk radio show) started a campaign, the Attorney General filed suit against Trevor Law and a few others.

Perhaps the Attorney General of Colorado needs to know about this scam.

Ahab

May 3rd, 2011

Thank you for sharing this devastating information. Can you offer advice to bloggers who find themselves the target of these lawsuits? Are there any organizations they can turn to for assistance?

paul canning

May 3rd, 2011

Thank X*st we don’t have this in the UK

kfreed

May 4th, 2011

Having learned that the Denver Post has allowed Righthaven to extort money in its name, I’ve dropped the Denver Post from my reading list and wrote the publication to express my disgust. I also downloaded a newspaper blacklist (excel spreadsheet) from a website devoted to supporting Righthaven victims:

http://righthavenvictims.blogspot.com/p/participating-newspapers.html

If I were you, I wouldn’t even paraphrase anything they publish. Users were doing them a favor by linking to their site and generating hits. Not anymore.

kfreed

May 4th, 2011

P.S. Righthaven isn’t having a great deal of luck in the courts these days as judges are wising up to Righthaven’s copyright scam. From the Electronic Freedom Foundation (Righthaven has no standing to sue):

http://www.eff.org/deeplinks/2011/04/righthaven-v-cio-it-s-hard-out-here-troll

kfreed

May 4th, 2011

Oops, that was supposed to read Electronic Frontier Foundation. In any event, here’s another story from BoingBoing that will undoubtedly warm your heart:

“Righthaven copyright trolls never had the right to sue, have their asses handed to them by the EFF”

http://boingboing.net/2011/04/17/righthaven-copyright.html

cowboy

May 4th, 2011

Last week, Scott Pierce of the Salt Lake Tribune used the word: “vomit” to describe a recent Glee episode. Yes, it was in the “blog” part of the online version of the SLTrib because I seriously doubt professional journalism would allow him to use that term in print.

Apparently, there is a different standard for print as opposed to a silly blog.

eugene

May 5th, 2011

we were all set to subscribe to a paper here in Las Vegas, we’ll go with the Sun thanks for the heads up we’ll not be patronizing the Review Journal

NT

May 13th, 2011

“because they copied more than a couple of paragraphs or a photo”

Why would you ever need to copy more than ONE paragraph, never mind a couple?

Why would you copy someone’s photograph without permission (they are clearly under copyright and much less subject to fair use)?

I’m not saying that draconian standards are good. I just would like a clearer sense of exactly WHAT they are suing over, and what the most minimal case in dispute has been.

perlhaqr

May 16th, 2011

http://www.wired.com/threatlevel/2010/10/dmca-righthaven-loophole/

$100, Righthaven can’t touch you.

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