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May 19, 2011

Righthaven Defendants Fight Back

iStock_000006810819XSmall.jpgOn February 25, 2011 I wrote a blog post about Righthaven, LLC, a company that has made a business out of suing owners of web sites for alleged copyright infringement. At the time, Righthaven had filed at least 239 lawsuits against all sorts of defendants, including individuals, small businesses, and nonprofit organizations. The number of lawsuits has now reached at least 275, most of them in either Nevada or Colorado.

Although many of the lawsuits have been settled, some of the defendants have chosen to fight back. For example, in Righthaven LLC v. Buzzfeed, Inc., the defendants recently filed a class action counterclaim on behalf of the defendants in all the Colorado lawsuits. In their counterclaim, the defendants argue that Righthaven has committed abuse of process and violated the Colorado statute against unfair and deceptive trade practices. In support of their counterclaim, the defendants allege, among other things, that

  • Righthaven has asked for remedies that it knows it is not entitled to. Specificially, the counterclaim says that Righthaven has tried to lock the defendants' websites and to get ownership of those websites.

  • Righthaven has attempted to coerce defendants into monetary settlements by threatening to get statutory damages and to take control of the defendants' websites.

  • Righthaven has sued for infringement of copyrights that Righthaven does not own.

The defendants also raise a number of defenses to Righthaven's claims, including the argument that the defendants' use of copyrighted material was covered by the doctrine of fair use and, therefore, was not an infringement.

In the previous post, we pointed out some things that website owners can do to avoid being sued for copyright infringement:

  • Assume that everything you find on the internet is subject to a copyright.

  • Don't copy text from another website (or, for that matter, from any other copyrighted source) and post it on your website, even if you give credit to the original source, unless you get permission from the owner of the copyright.

  • Don't post copyrighted images on your website unless you receive permission from the owner of the copyright.

  • Take advantage of the wealth of images that are available free or at low cost from online stock shops such as and

Regardless of how successful the Righthaven defendants are in their attempts to fight back, these tips remain valid. You do not want to be sued for copyright infringement, even if you might ultimately prevail in that lawsuit. It can be very expensive to ultimately prevail. It's better not to be sued in the first place. But if you are sued, you should understand and take advantage of all the weapons that are available to you, both defensive and counteroffensive weapons.

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February 19, 2011

Copywriters Accused of Infringing Copyright

iStock_000009859856XSmaller.jpgA few days ago I wrote about a whole raft of copyright infringement lawsuits that have been filed by a company called Righthaven, LLC. My hope was that drawing attention to those lawsuits might educate business owners and nonprofit organizations about the potential legal problems associated with posting copyrighted material on their websites.

Since then I learned of a company that recently paid $4000 to settle an accusation of infringing the copyright of photograph that would have cost about $10 to license. The company is in the business of writing copy for web sites. Yes, that's correct -- they're copywriters. Apparently, the problem arose when one of them pulled a photo from the internet and placed it on a customer's blog under the mistaken belief that if the photo didn't have a copyright notice, then it was in the public domain and thus fair game. If you read my previous blog entry, you already know how wrong that is. Now the copywriters do, too.

You can read the entire story here.

February 15, 2011

Owners of websites: Learn from the Righthaven lawsuits!

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Click here for a later post on this topic.

You may not have heard about Righthaven, LLC, a company that has filed 239 (and counting) lawsuits against alleged copyright infringers in less than a year. But if your small business or nonprofit organization has a website, you should pay attention.

According to the Electronic Frontier Foundation, Righthaven searches the internet for newspaper stories that have been copied and posted on websites, acquires the copyright to the stories, and then sues the person who posted the copied material. Righthaven seems to be an equal opportunity plaintiff, willing to sue just about anyone. So far it has taken on The Drudge Report, A Blog About History, Teapartier Sharon Angle, and the Democratic Party of Nevada.

Righthaven doesn't restrict its targets to large organizations or famous names. Over thirty of the Righthaven lawsuits have been filed against individuals who posted on their websites the same copyrighted photograph from the Denver Post photo featuring a Transportation Security Administration officer patting down a passenger at Denver International Airport. While some of the defendants admit to copying the photo directly from the newspaper's website, most of them claim they found the image somewhere else on the internet and had no idea the photo was copyrighted until they received notice of the lawsuit.

Not even charitable organizations get a free pass. Trauma Intervention Program of Southern Nevada Inc. (TIP), a Las Vegas non-profit organization, was sued by Righthaven for re-posting news articles to their website. TIP organizes volunteers and sends them to emergency scenes to comfort traumatized witnesses of accidents, crimes, fires, etc. In response to the lawsuit, TIP replaced the full length articles with links back to the newspaper's website.

As you might imagine, there are some strong and differing opinions about Righthaven. Some of its critics refer to it as a "copyright troll," and to the defendants in Righthaven lawsuits as its "victims." On the other hand, some copyright owners, such as the Denver Post complain about widespread copyright infringement and see Righthaven as a means of enforcing their copyrights.

No matter how you feel about Righthaven, it's important to guard against infringing a copyright that belongs to someone else. The first step is to assume that everything you find on the internet is protected by copyright. At one time, material subject to a copyright had to be marked as such, but that hasn't been true for years. Although some materials are in the public domain, it's far safer to assume that everything you find on the internet is copyrighted even if it does not explicitly say so! Unless you have received permission from the owner, never post copyrighted text, images, or videos on your website.

It's true that under some circumstances, copyright law allows a limited amount of copying under the doctrine of fair use. The problem is that the boundary between fair use and infringement is very difficult to discern. To say it's fuzzy is an understatement. Summarizing or paraphrasing the original story are better ways to provide the same information to your readers without potentially infringing someone else's copyrighted material. Remember: a copyright protects the expression of an idea, not the idea itself.

But what about pictures? Fortunately there are sites on the Internet you can find images and obtain free or low-cost licenses to them. Stock photo websites allow you to use keywords to search for all different types of images. Take a look at our blog - almost every entry includes a photo, and we found all of them on stock photo sites! Well, all of them except the picture of the Indiana Statehouse. That photo demonstrates another way to avoid infringing someone else's copyright. It's an original photo taken by a member of our staff and is therefore copyrighted exclusively for the use of Smith Rayl Law Office.

Remember, just because it is relatively simple for you to find a picture or news story online does not mean you should post it! There can be real consequences to copyright infringement, even when it is unintentional.

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January 27, 2011

Nonprofit Organization Settles Trademark Lawsuit: Little House on the Prairie

iStock_000005049341XSmall.jpgEarlier this week, Friendly Family Productions, LLC, the company that produced the television series Little House on the Prairie settled its lawsuit against a nonprofit corporation that operates a small museum outside Independence, Kansas. The museum is located at the site of the original house that Laura Ingalls Wilder wrote about in her book of the same title. Friendly Family Productions alleged that the museum infringed the trademark LITTLE HOUSE ON THE PRAIRIE. According to complaint filed in U.S. District Court in Los Angeles, the predecessor to Friendly Family Productions acquired rights to that trademark from the author's descendants in 1974.

What got Friendly Family Productions all riled up (to use a term that Ms. Wilder would have been comfortable with) was the use of the trademark on merchandise that the museum sold, including the merchandise that it sold through a website with the domain name Friendly Family Productions acknowledged that it had no quarrel with the museum using the words "little house on the prairie" to describe the homesite or the museum, because a purely descriptive use like that does not infringe a trademark. On the other hand, Friendly Family Productions had considerable quarrel with the museum putting those words on merchandise (caps, T-shirts, magnets, note cards, key chains, and other items typical of promotional merchandise) and selling them over the internet. Friendly Family Productions claimed that the use of those words implied that the merchandise came from the owner of the trademark, when it did not. That is, in a nutshell, the reason trademarks exist -- to identify the source of the goods that bear the mark.

According to an article in the Topeka Capital-Journal and other sources, Friendly Family Productions originally offered to pay the museum $40,000 if it would stop using the trademark. The museum refused the offer, choosing instead to fight the lawsuit. The terms of the settlement agreement are confidential, but we know that the nonprofit corporation has changed its name from Little House on the Prairie, Inc. to the more descriptive Little House on the Prairie Museum, Inc., and is no longer active.

There's no way to know how much the two-year litigation cost the parties.

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