Righthaven and The Copyright-Quo

Over the last decade and a half it’s become abundantly clear that something about the current institution of news distribution has to change. The internet has pretty well shot print journalism’s reader base by offering not only more up to the moment news but also a wider variety of sources and often without a direct monetary expenditure. That’s not to say that no one reads newspapers anymore, but to say its readership has declined is a bit of an understatement.

Most newspaper companies have tried to adapt by hosting content online, and in the early days they tried various monetization techniques – they partnered with subscription services like AOL, employed micropayments for articles, tried to make their content less shareable, and various other tactics.

Few, if any of these practices have been sustainable – largely because they all hold strongly to traditional monologist notions of information dissemination. But, as Gordy Thompson put it to Clay Shirky. “When a 14 year old kid can blow up your business in his spare time, not because he hates you but because he loves you,” it’s clear that more radical shifts in business practices are necessary. Of course, given that the current moguls rose to power under the current structures, it’s not surprising that more complete overhauls have been largely resisted.

But that does not even remotely explain (much less make acceptable) some of the developments of the last 6 months.

Taking a page from the recording companies’ ongoing though lessening lawsuits against peer-to-peer music sharers and the more recent BitTorrent cases targeting seeders and leechers of films such as The Hurt Locker, a Nevada based lawfirm, Righthaven LLC (which represents a few papers, most notably the Las Vegas Review-Journal) is trying to monetize news on the backend by suing bloggers, non-profits, and individuals whose sites contain reproductions of their articles in part or in full.

I have so many problems with this it’s hard to even know where to begin. On a very basic level, I think it has the potential to cause a really serious chilling effect on internet discussion since the reposting of facts garnered from news articles could become a hazard if Righthaven is successful. And that is an assault on the way most internet discussion goes. You read something, do research, and bring the fruit of your research back to the original discussion – often copy/pasting tidbits of information and linking back/quoting for longer statements.

“The basis of the lawsuit was what was scary,” said Erik Altieri, an employee of NORML, one of the first organizations to be sued by Righthaven. “That someone could just sell the rights to their material to a law firm who patrols the internet for use infringement, even if it was years ago, even if it was sourced out. Even if you cited them and linked back to their original articles.”

Now, Righthaven says their goal is deterring copyright theft, but to me, the interview Righthaven CEO Steve Gibson did with Wired speaks pretty directly against that (of course this is slightly slanted since the quotes are from an article and not me taking them from the full text of what he said, so I may be cherry picking from a cherry picker, but still). I’d imagine the argument for their strategy as optimizing the level of deterrence might go something like this:

We only buy rights when we know we can sue, and we don’t send take down notices because few websites comply explicitly with the DMCA so the “infringers” are not even protected. More, since they are largely individuals, even if they would deserve a take down notice, it’s probably cheaper for them to settle, so it still serves the same purpose of scaring people. On top of that, though, the same Wired article “Righthaven has other media clients that he [Gibson] won’t name until the lawsuits start rolling out,” so you shouldn’t post anything from any article from any newspaper because they may be working with us.

The portion that speaks towards this sue-first style as a short-term business model that intends to capitalize on changing norms of content sharing rather than be a lasting solution comes from the very end of the Wired article - “Frankly, I think we’re having tremendous success at a number of levels,” Gibson says. “We file new complaints every day.” That success includes rolling out suits hints that their goal is not to stop people from what they see as infringement, but to profit off of what they know is going to continue to be the norm – people will quote and link to them, and then they can continue to sue and settle. They’ve already filed over 130 claims, and settled at least 29 of them for roughly $116,000, and it doesn’t show any sign of slowing down. Really, if deterrence were really Righthaven’s goal, the only success would be when there are no more suits that could be filed.

Granted, I think the business model is a little bit more complex than that. I think part of the motivation is also to create a short-term buzz around the LVRJ so that they get more traffic. I, for one, had never heard of the LVRJ much less visited their site before the Righthaven cases – now I’ve read a grand total of 3 articles (all on their views of suing infringers). Of course, this seems like a terribly silly long-term practice because at the same time they are causing fewer other people to link to their site, which hurts their rank on search engines like Google, but for now, I bet their advertising revenue is up because controversy means clicks and eyes.

But their success as a business is not what troubles me about these suits, obviously. Honestly, I really hope I’m seriously overstating the quality of their business model (sorry if the length of that tangent was a bit much). What bothers me most about it is that it works to prop up a breaking if not broken status quo. As I said at the beginning of this post, clearly something has radically changed if the people your business has to fear are your fans and not your foes. Righthaven is doing its best to avoid letting its fans actually celebrate the work the newspaper does and trying to preserve an outdated model where the newspaper is the only place that can supply news.

What’s worse is that it’s using governmental policy and federal structures to prop up the system. Law is meant to be a shield against immorality, something that protects people and businesses from abuse – not stand in the way of change (honestly, these practices seem oddly reminiscient of pre-Civil Rights era law abuses that tried to prevent the enfranchisement of African Americans). Righthaven is treating the law like a sword to cut out the legs of what is clearly a new way of viewing content that clearly the majority of people feel. And unless judges rule on it, it’s really unlikely to change given that law moves glacially compared to practices surrounding technology.

I think Righthaven knows all of this – especially the last part, about how nothing will change until rulings come in. Which is why I think Righthaven has primarily targeted individuals and groups who are largely trying to work towards some sort of change from the status quo. They do not have the time nor the money to fight against Righthaven suits, so they settle out of court – at least partially legitimizing Righthaven’s suits.

Righthaven’s suits are nothing but a desperate attempt to hold on to a status quo that has long since ceased to be what people see as the norm. The RIAA dealt with this years ago and has tried to change content models to make online distribution possible, and most newspapers are trying to work with, rather than against their readers. The Las Vegas Sun, which has been covering its competitor’s suits, for example, has been trying to turn “infringers into allies” by not suing, but asking “that they take down our material and replace it with a link and at most a paragraph or two from the story. Such links drive traffic to our site, which is a good thing, especially for our advertisers.”

But the perpetuation is more than just of the copyright-quo. Since the suits are targeting those small groups who are frequently trying to change some current policy, it also saps the already limited resources of groups like NORML, and makes their fight that much more difficult.

“In the end we probably could’ve fought it and won,” said Altieri. “But it would’ve consumed a crazy amount of our time money and resources and not have advanced the fight for marijuana legalization. Most of us involved agreed it was something we wish we had the resources to fight on principle, but it really would’ve consumed us.”