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Copyright Trolling for Bloggers—Don't Get Hooked

Oct 15, 2010
Henry M. Sneath and Robert L. Wagner

In what appears to be a page out the music industry’s response to downloaders, newspapers are now beginning to take measures like this to protect their intellectual property

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Your local newspaper gives your restaurant a good review or profiles the charity you started or writes up an account of your son scoring the winning touchdown at the high school football game. Wanting to share the good news, you repost the article on your blog or on Facebook. Next thing you know, the newspaper sues you in federal court for infringing its copyrights and seeks up to $150,000 in statutory damages. Sound farfetched? In what appears to be a page out the music industry’s response to downloaders, newspapers are now beginning to take measures like this to protect their intellectual property.

The firm Righthaven LLC acquired multiple copyrights from the Las Vegas Review Journal and sued over 100 individuals and entities in the past year in Nevada for copyright infringement for reposting some or all of various articles that appeared in that newspaper. Companies like Righthaven are often referred to as “copyright trolls” because they do not create or publish the articles on which they sue or acquire copyrights for the purpose of filing lawsuits. Righthaven has sued everyone from political candidates to charities, individuals, bloggers, and companies—even those that the newspaper featured in the very article that was copied. None of these cases have gone to trial, and many defendants have chosen to settle for a few thousand dollars—likely to avoid the substantially greater costs of litigation.

Copyright infringement generally requires proof of two elements: (1) plaintiff owns a valid copyright in a work and (2) defendant copied original elements from the copyrighted work. While there are a variety of defenses to a claim of copyright infringement, two that bloggers may believe provide them some protection—the fair use doctrine and the Digital Millennium Copyright Act (DMCA)—are likely to either be not applicable or unpredictable.

The fair use doctrine permits copying under limited circumstances, such as for purposes of criticism, commentary, news reporting, teaching, scholarship, research, or parody. In assessing whether a use is “fair” under the fair use doctrine, courts look to four basic factors—(1) the purpose of the use, (2) the nature of the copyrighted work, (3) the amount copied, and (4) the economic effect of the copying. Wholesale copying of an article factors against a finding of fair use, as would copying it on a blog that receives some income (such as from ads placed on the website). Regardless, application of this defense is highly fact specific, so it is difficult to accurately predict whether a use will be considered “fair” by the courts.

The DMCA also provides limited protection for a blogger who reposts an article. The “safe harbor” provision of the DMCA protects service providers (SP) who do not select or place the material on their websites. To be eligible for this safe harbor protection, the SP must designate an agent with the United States Copyright Office. If an SP complies with these (and other requirements), a copyright holder must first provide notice to the SP before it can sue the SP. Even if a blogger qualifies as an SP, most bloggers will not be able to benefit from this protection, because they will have selected and placed the material on their blog or will not have designated an agent.

Whether other newspapers or copyright trolls will follow in Righthaven’s and the Las Vegas Review Journal’s footsteps remains to be seen. Suing charities and your readers would seem to be counterproductive. Then again, the recording music industry found it worthwhile to sue individuals for downloading a handful of songs. Bloggers should be careful when reproducing another’s work on their blogs and, at a minimum, should consult the source’s policies for reproduction and linking before doing so.

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