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Sue First, Ask Questions Later

In Las Vegas, a lawyer and a newspaper team up to play copyright sheriff on the Internet.

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Romantics say information wants to be free—the way the Sioux and the buffalo once were, before the west was tamed. But Steve Gibson has a different idea. A Las Vegas attorney, Gibson might as well wear a tin star. He's a man with a cause—he means to bring law and order to the Internet.

Gibson has joined forces with the publisher of the city's larger local daily newspaper, the Las Vegas Review-Journal, to create a limited liability corporation called Righthaven. Righthaven looks for websites where Review-Journal content is posted without permission. When it finds malfactors, Righthaven skips the niceties. Instead of the usual cease and desist letter, it licenses the copyright and sues. In the more than 100 suits it's filed so far, it's been asking for $75,000 and—in a twist of the knife—control of the domain name of the offending site.

For instance, should Righthaven get everything it asks for in a suit filed September 3, it will take over the domain sharronangle.com. Should that actually happen, one Sharron Angle will find herself in an unfortunate position, because she is the Republican candidate for the U.S. Senate running against Senate majority leader Harry Reid, and sharronangle.com is her campaign website.

On July 21, the Review-Journal published an editorial headlined "It's the jobs, stupid / Despite rhetoric, whatever Harry's doing isn't working." The Angle camp wanted voters to hear this message, so up onto her website went the editorial. If she'd merely linked to the editorial, she wouldn't have heard from Gibson. But, says the Righthaven suit, she "willfully copied, on an unauthorized basis," the whole thing. The suit cites three other Review-Journal pieces it says the Angle campaign lifted the same way.

Righthaven v. Angle was the 116th suit Righthaven has filed since March 13, and it's filed at least eight since—the website righthavenlawsuits keeps a running tally. None of the cases has gone to court, but 29 have been settled, for generally paltry sums—the website estimates the average settlement has been about $4,000. No domain names have been surrendered. Gibson's draconian demands are intended to command the defendants' attention and put the fear of god in them. "Most of its suits," writes Steve Green of the Las Vegas Sun, reporting on Righthaven's offensive, "are against small mom 'n pop-type special interest websites, bloggers and nonprofits."

But not all. Angle doesn't fit that bill. Neither does Internet Brands Inc. of California, which according to Green owns some 100 websites. Righthaven sued Internet Brands after spotting a Review-Journal article posted on its Corvette Forum site. Most of the threads there focus on cars, but in the "Politics, Religion & Controversy" forum someone posted in its entirety the June 20 piece "Reid Machine Dwarfs Angle" with the comment, "The following article from the paper today highlights Dingy Harry and his propaganda machine . . ."

According to the Righthaven suit, Internet Brands' "failure to institute any proactive policies intended to address the posting by others of copyright-infringing content" constituted "willful blindness to copyright infringements."

Internet Brands hired Lewis and Roca, a prominent western law firm specializing in intellectual property litigation, to defend it. Responding to the suit, Lewis and Roca cited the fair-use doctrine, accused Righthaven of "unclean hands," claimed the article's accessibility on the Review-Journal website amounted to an "implied license" to copy it, and, more exotically, accused Righthaven of "barratry"—the repeated filing of lawsuits simply to harass—and "champerty," which is buying a piece of litigation that doesn't concern you in order to profit from it.

Lewis and Roca is defending a dozen or more websites sued by Righthaven, and in other cases it's used blunter language. Jan Klerks, a Chicagoan who runs the message-board site SkyscraperCity, was sued over a Review-Journal story posted on the site by a visitor. In its response, the law firm called Righthaven a "copyright troll." In a motion to dismiss the suit against MajorWager.com Inc., a Canadian firm that runs a sports-betting site, Lewis and Roca asserted, "While this case masquerades as a legitimate copyright dispute, in reality, it is arguably frivolous and nothing more than a thinly disguised shakedown."

No, says Gibson, it is not. Despite the "uncontrolled and chaotic copying" unleashed by the Internet, copyrighted writing doesn't enter the public domain simply by being put online, he told me. "That's just fundamentally not the way America works," he said. "When reporters such as yourself and newspapers such as yourself spent time and energy to produce a story, that takes money, talent more often than not, and certainly energy—if your work is disrespected because someone happens to want to publish it on the Internet and people believe it becomes public domain, I don't think that's part of the American system as we've grown to develop it. Frankly, this notion that other people's works are communal property is against the democratic respect for individual property that is part of our system."

After my story ran, he went on, he'd be "delighted" to have a conversation with the Reader's publisher about acting with similar aggression against sites that poach our stories. He wants clients beyond the Review-Journal, and he's beginning to find them. (One is WEHCO Media, a chain of 28 daily and weekly newspapers based in Little Rock.) Having practiced in Chicago at Sidley Austin, and being familiar with the Reader, he said, he knows we take our journalism seriously and presumes we don't enjoy seeing it appropriated. (I might have said a word or two against Huffington Post to hold up my end of the conversation.)

Gibson knows he's touched a nerve. Anyone who doesn't like what he's doing probably despises it. Because his tenure and Michelle Obama's at Sidley Austin overlapped, he's being hammered on the right as a White House cat's paw out to crush bloggers. But he has friends too. "We believe we will be able to demonstrate to a wide variety of large publishing companies that the Righthaven solution is a good one," he told me. "And I will say we have received a favorable reaction from a wide array of content publishers."

Says Lewis and Roca's Jonathan Fountain, "I don't doubt that some newspapers are sympathetic to Mr. Gibson's cause. But we don't see it as much different from the person who clips out a newspaper article with a pair of scissors and puts it on a bulletin board at work. That's been going on for decades and nobody's getting sued."

"We certainly do fair-use analysis, and we believe every case we bring doesn't involve legitimate fair use," Gibson told me. Fair use is a legal concept that allows the essayist, critic, and seventh-grade term paper author to quote modest amounts of somebody else's language if they need it to get the job done. Copyright law draws lines, and any judges who eventually hear Righthaven cases might find the line between an office bulletin board and a public website an easy one to draw.

A more intriguing line is the one Gibson wants the courts not to draw. His suits aren't distinguishing between sites such as Sharron Angle's that post articles and sites such as Jan Klerks's and Internet Brands' that don't police what the public posts to Righthaven's satisfaction.

Fountain tells me there's a step web hosts can take to buy themselves legal protection against copyright-flouting posters. For $105 they can register with the U.S. Copyright Office as an online service provider, putting them under the umbrella of the 1998 Digital Millennium Copyright Act. Registered service providers aren't financially liable for infringing posts so long as they "expeditiously" remove them when they're notified of them. "But that's not how these cases are going," says Fountain. "The folks targeted are usually small, commercial websites that aren't sophisticated enough to take advantage of the DMCA safe harbor."

Consider the implications of Righthaven's campaign for a medium such as the Reader. On the one hand, Righthaven wants to help us guard the work product we post on our website. On the other, it wants to put the fear of god in us should any user of the site post somebody else's work product there.

Gibson's not alone in going after web operators who don't police their sites. Fifteen months ago I wrote about a legal campaign being waged by Frank Easterbrook, chief justice of the Seventh Circuit Court of Appeals in Chicago, to overturn the standard interpretation of the so-called Good Samaritan provision of the 1996 Communications Decency Act. The courts have interpreted this provision to hold that website proprietors can't be held liable for what others post there. So anything goes and the sites enjoy legal immunity.

But judges dismissing suits against offensive websites because the Good Samaritan provision tied their hands have made their unhappiness clear, and Easterbrook wants to untie them. In a couple of Seventh Circuit opinions he's promoted an alternative way of reading the act that would expose websites to state regulation. I wrote at the time, "How far away is the kind of Internet regulation that Easterbrook says federal law should permit? I have no idea. But if you think none is coming, dream on."

Easterbrook's concern is public decency. Gibson's is copyright violation. But they're both after the same thing—an Internet hemmed in by laws, its proprietors obliged to stand vigil over their establishments and answer for whatever goes on there. Western movies like to call the process "bringin' civilization."   v

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