Bait and Switch Litigation
Now we have heard it all! Bait and Switch Litigation!
Here is a story that stands on its own merit as an example of the extent of our litigious society. On the future of this story rides a new era of litigation. The protection or non-protection of: social media, Internet blogging, writing/journalism criticism, First Amendment rights and The Fair Use Doctrine. All citizens, especially media producers have stake to be concerned with this Bait and Switch.
In this group of cases the owner of the assets (copyrights in this case) transfers the asset (the copyright) to a newspaper that transfers the copyright to a third-party company who then sues a different party for infringement.
It sounds confusing, but that is the heart of a scam. It is called “copyright trolling.” In a nutshell it is like this. Company B is the plaintiff (aka Righthaven, LLC) in every single one of these cases. Company A is the original creator of the writing or intellectual property.
1. Company A puts out an article, blog, news report or the like. Company B (the plaintiff) trolls the Internet and newspapers to find a blogger (usually) who may have copied, reproduced or extended the rights of the article under the rights of the Fair Use Doctrine, criticism or even plain old plagiarism.
2. Company B (the plaintiff) approaches Company A and tells them that the copyright is being violated. Company A says, “Wow, we didn’t realize that!”
3. Company B (the plaintiff) says, “You transfer the copyright to our owner newspaper and then we will transfer it to us at Company B (Righthaven LLC) and we will sue the infringer for you.” (Righthaven LLC pays for the lawsuits.)
Okay – it’s settled! A lawsuit is born. Why does Company B want to do this placing themselves as a perpetual plaintiff in copyright cases? You think you hit the #1 reason on the laundry list (money), but hear all the justifiable reasons and then you can be the jury in the case(s). (Note that the cases have left the judges trying to figure this out.) Here are the arguments that Company B is making and the courts are analyzing to figure out the Bait and Switch Litigation.
– For money! A copyright infringement holds a statutory amount of $150,000 per violation, plus some other costs. Company B gets rich suing.
– Company B feels sorry for Company A that does not have the money to sue, so they kindly undertake the task. Company B provides pro bono legal work.
– Company B cares so much about the Fair Use Doctrine and the ambiguity it presents, that they have decided to take enforcement into their own hands.
– Company B wants to play politics and become strong enough to make political points by stopping bloggers and Internet writers from publicizing their opinions and criticism.
– Company B wants to stop the rush of social media by 1) tightening the Fair Use Doctrine against its use in commercialism and 2) limiting the legal right for recreating articles, blogs, news reports, literature, video to prevent “viral” marketing, publicity, promotion and the like.
– Company B loves litigation.
It sounds like a fantasy legal world, however it is not; these cases are now called the Righthaven cases and there are 195 of them each with a potential settlement of $150,000 or more plus the payback of legal fees if Company B wins. Righthaven LLC is not the originator of the copyright; they assume the copyright after it has been transferred from the owner to the Las Vegas Review-Journal and then to Righthaven LLC, bypassing the Digital Millennium Copyright Act requiring a “take down” and therefore going straight to litigation. If you have not figured it out, Righthaven LLC is half owner of the Review-Journal. The names in this case do not matter, the motives and legalities do.
According to the Library of Congress, “under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work.” News reporters, bloggers, documentary makers, filmmakers, writers and Internet sites take rights under the Fair Use Doctrine. Fair Use is a little like the Right to Privacy and thus it varies country to country also.
Michael C. Donaldson Esq. is the most notable authority on the Fair Use Doctrine in the U.S. and a hero to producers, web developers, writers, documentary makers or bloggers reading this article. He is a hero to documentary makers and an attorney noted as instrumental for what we now know as Net Neutrality – NO ISP server or government interference on site content, platforms and content.
The judges in the case have ruled that the holder of an infringed copyright has standing to sue. U.S District Judge in Nevada, Judge Mahan, ruling and sorting out a case (Righthaven v. Center for Intellectual Organizing (CIO)) said the firm appears as an organization that “only sues people, apparently”, yet he could not take away the standing to sue.
What about the argument that Righthaven sues to win based on monetary gain? They have sued Fortune Magazine, Drudge, Democratic Underground, the National Organization to Reform Marijuana Laws and Republican National Senator Sharon Angle and News Media Group. The Denver Post actually gave Righthaven their claims. Righthaven even sued Americans Against Food Taxes. Righthaven claims they sue rich and poor.
In many of the cases, the infringed were NOT first notified or approached by Righthaven. You can go here for the Righthaven Cases.
In a recent case, Righthaven LLC v. Klerks (D. Nev. Sept. 17, 2010), the judge permitted Mr. Kierks meritorious defenses to the fact that he claimed he was notified by a newspaper and never served in the case. Spokespersons for Righthaven indicate that they want to make sure the Fair Use Doctrine stays fair to all citizens. Do you think they care that much?
You can be the jury of Righthaven, but I will recap what we know for sure. First of all, Righthaven is not losing money. Second of all, Righthaven is making money!
Do you think Righthaven has a bigger hidden agenda? Perhaps they could find a mega-site with hundreds of thousands of violations. They would make a lot of money if that were to happen! What about Facebook? I say look out! I predict a multi-billion dollar class action suit.
We are entering times where our education, our awareness and our security have never been more important! That is why I am a loyal fan of all of the copyright producers at Asset Protection World and people who protect our intangible assets like The First Amendment! I can assure you that this content is original!
