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Righthaven Q&A: C&D letters don’t stop infringement

Steven Gibson, founder of Righthaven, spoke with Fortune for our story on his work in copyright lawsuits. Below, an edited excerpt of our interview with him.

Interview by John Patrick Pullen, contributor

Fortune: In the column from May 2010 where Review-Journal writer Sherman Frederick described new arrangements with Righthaven, he called it a technology firm. How is Righthaven a technology firm?

Gibson: Sherman Frederick does not speak for us, and we did not ghostwrite that column. I’ve never met him.

Righthaven deploys technology to ascertain infringements and reproductions. Righthaven is a company that is very forward looking in understanding that the economy of the next several decades will become further developed as an information-based economy, therefore the assets that will be be created will be protect by copyright.

“If you operate a website (liberal or otherwise) and don’t know what “fair use” is in the context of American copyright and Constitutional law, then I suggest you talk to your copyright lawyer and find out.” That’s a quote from Frederick’s column. But fair use is open to interpretation. Would it be fair to say that your lawsuits are actively refining that interpretation for the digital age?

That’s a great question. Yes, I believe that theres no question that the fair use debate is a function of case law and on various facts that arise for court ajudication and jury consideration with respect for fair use. We are absolutely continuing to develop the law of copyright in the area in respect to fair use. There is very substantial guidance in the courts already that make it clear that the kinds of reproduction that Righthaven is addressing is not fair use.

Not surprisingly, you’ve met with a large amount of criticism on the Internet, but you are within your rights to protect your copyrights. Why haven’t an equally vocal group of advocates spoken out on your behalf?

I receive numerous communications from the community represented by authors and publishers that are very supportive of us. You need to put things in perspective. What is the quality or the volume of the infringement community versus the creative community? There are generally more takers than creators.

Your work — merely because you published it on the Internet — they believe it’s public domain. Unfortunately that is ignorance of the law. I think the more insightful commentary is whether the law needs to be changed. That’s a legitimate debate.

Righthaven has been characterized as being “Copyright Trolls,” a construct based off the “Patent Troll” scheme of companies buying up under-protected patents and then suing people who have utilized the technology. What’s your response to this characterization?

If it’s name calling without substance, it’s not worthy of comment. If the comment is that we are taking a fresh approach to help stem the tide of infringement on the internet — and not intended to be merely pejorative — I don’t have a problem with it. It’s hard for me to reply to name calling, because it’s not part of the debate of copyright protection or not.

Assuming that’s not fair use, what is being really said? Is it a complaint that the infringement community was caught and is not obeying the law? Or is it that there is some enforcement out there, and that’s not really a bad thing. If there’s a community of thieves that complained vociferously and then called the people who were doing it bad names, then it is what it is.

Many of the organizations that you have brought suit against are small, sometimes even non-profits. How has it come to pass that so many of the companies have been small and relatively underfunded or unable to pay for legal defense?

There have been many organizations that are apparently well funded. We don’t have the ability to determine the relative wealth when we file a lawsuit. There are many individuals that are wealthier than some companies, and there are many non-profits that have a funding stream that is substantial. I believe the 9th Circuit Court of appeals in the Worldwide Church of God case does not create an immunity against copyright infringement. If that were true, on a weekly basis, any nonprofit could copy Fortune magazine and distribute it. That doesnt make sense.

We believe that if a website publishes a work that is searchable, the fact that it may appear on a large media domain or smaller domain isn’t neessarily going to redefine if it was redirected. If a viewer does a search, the topical story may first appear first on the non-profit rather than the original site. We don’t discriminate in terms of infringement, whether the owner has a lot or a little money.

Frankly, if I thought about — it and I just did now — if Righthaven was after money only, logic would dictate that we would only going after people who had a lot of money. If pure greed was the only single motivator, we would potentially ignore those who don’t have as much money as the others.

That said, we’re a for profit company…. There’s nothing in any legal doctrine that indicates that we do not have the right to operate in a manner that will have market constraints.

Why not do as most other media companies do, and ask that offenders take down the copyright material?

I disagree with the premise of your question, but for the sake of argument, let’s assume the premise is true. You’re asking why we don’t do what someone else does…. I believe that there is a substantial growth of opinion and understanding that cease and decist letters are not effective in stemming the tide of infringement. If we as a society determine that copyright infringement is not something our society wants to see, and minimization is a societal good — if those premises are true — its fair to say there’s little incentive for people who receive a cease and desist to stop illegally reproducing content. If you know that that you’ll only get a letter….

Most, if not all, of your cases seek the maximum penalty of $150,000. Considering that some of the instances are excerpts, and the small size (or nonprofit status) of the typical defendent, why do you seek that much?

That’s a technical legal matter. There are certain things I’m advised under counsel not to discuss.

You also seek forfeiture of the offender’s domain name. This award is unprecedented in copyright law — you’ve even admitted as much in the DiBiase case: “Righthaven concedes that such relief is not authorized under the Copyright Act. That concession aside, Righthaven maintains the court is empowered to grant such relief under appropriate circumstances.” Why does Righthaven feel they are entitled to the offender’s domain name, and how many domain names has Righthaven been awarded to date?

It may very well be that is something that we continue to seek, depending on how the case evolves. For the most part, the vast majority of our cases have settled. For those who haven’t, we’re at the beginning stages of litigation, so the issue hasn’t been settled yet. As we pursue default judgements, it will be very relevant.

Righthaven has filed a suit against the Drudge Report, alleging that they reposted a photograph from the Denver Post — one of your new clients. Would it be fair to say that Drudge is Righthaven’s most well-known and funded legal opponent to date? It seems uncharacteristic for Righthaven to go after such a high-profile media company — why the change?

I can’t say that. It would be speculation on my behalf. You can look through our cases yourself and see.

In Righthaven v. the Center for Intercultural Organizing (CIO), the issue of harm has been brought up. How are these cases harming your company, as owners of the copyright?

I that the issue of harm is not technically concordant with the principles of the copyright act. The copyright owner is entitled to seek out the infringement and receive damage from that infringement. Righthaven is the copyright owner, and we are following the law with respect to the courts.

The best question is to look at the factors in the court’s assessing of the the damages under particular circumstances. We have not had an opportunity yet to address those questions before any court. There will be a time to do so. The vast majority are settling and the rest are in the nascent realm of litigation.

In that case, you have objected to the friend of the court brief filed by Jason Schultz. In that brief, Schultz argued that the case should be dismissed under fair use, and that the Review-Journal encourages readers to share their stories. Why do you object to this brief, other than the arguments outlined in it?

We have given a detailed, well reasoned response to this. I don’t have time to go over it again.

How is it different for EFF to be involved or inserting their involvement in these cases, than for Righthaven — who did not own the copyrights at the time of the infringements — to raise them in the first place?

There are remarkable differences between the two. You’re talking about the difference between someone taking ownership and someone being in the position of legal counsel. Then you’re talking about the difference of being hired as a legal counsel and then coming in as an amicus. Then you’re talking about the difference between coordinating legal counsel and being legal counsel. [If discussed in detail], it would be a long and potentially out of context answer that I would give you.

But Schultz’s argument raises an excellent point: In the Social Media era, where does sharing end, stealing begin, and fair use continue to apply? Isn’t that what Righthaven is really fighting to define?

No. I think that for the most part, we were very, very concerned about professor Schultz brief in our cases. In our view they were looking at the context of, for example, is Google or Google-type entities copyright infringers for thumbnails — which is very different than where the defendant, in that case, publicly displayed 100 percent of an article. In the case that Professor Schultz is discussing, we don’t believe there is a meaningful debate that someone can take an article 100 verbatim and replicate it on the internet. We don’t believe that society, by way of the courts, is debating that question.

Society may be debating, tangentially, linking or cacheing — and many of those questions have been answered. What really is happening here is a realization of the infringement community that the days of merely receive a takedown letter are over, and that people will have a means to protect their ownership rights. Like you’re taught in grammar school, it’s not right to take someone else’s work, whether it’s cheating or plagiarizing. Whether the Internet permits you to do it, that doesn’t make it right. If you read the case law on these issues… even the Las Vegas Sun agrees — no one out there thinks 100 percent taking is fair use. At some level, I applaud the Las Vegas Sun on that report. Might I add, they seem to be providing more balanced reporting on this issue of late.