NORML Settles Copyright Case With Righthaven After Rare Strategic Maneuver

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The advocacy group National Organization for Reform of Marijuana Laws has settled a lawsuit brought by copyright enforcement outfit Righthaven by agreeing to pay $2,185.

The settlement resolves a lawsuit filed in March against the nonprofit by Righthaven for allegedly infringing copyright to three Las Vegas Review-Journal articles.

NORML had argued that in court papers that it was not liable for several reasons, including that it didn't copy or display any of the articles itself. Instead, NORML said it subscribed to a news feed by the group Media Awareness Project. While NORML has links on its home page to the Media Awareness Project's news feed, NORML said it did not carry any of the original articles.

But the group nonetheless offered to resolve the case in order to avoid the costs of litigation -- which would have totaled at least $10,000, says its attorney, Marc Randazza.

"I really think NORML would have prevailed, but NORML's mission is advocating for the reform of marijuana laws. NORML's key mission is not standing up to copyright trolls," Randazza says.

Righthaven CEO Steve Gibson says the deal only resolved the three instances of alleged infringement mentioned in the lawsuit and that the company reserved the right to sue NORML over other alleged infringements in the future. "Obviously NORML is not -- in any way, shape or form -- going to be given a general release," he says.

Righthaven, which sues small Web site operators for alleged copyright enforcement, has brought cases against more than 30 Web site operators since March -- including nonprofits, sports sites and a local real estate agent. Many of the defendants told Online Media Daily that their posts included links to the newspaper. Many also said that no one complained to them about the posts before filing suit. While the law doesn't require copyright holders to send cease-and-desist letters before suing, many nonetheless do ask publishers to remove material before resorting to litigation.

NORML's offer of around $2,200 represented what the group believed was triple the amount of potential damages in the case. To arrive at that figure, the group examined its records and calculated that the links were clicked on a maximum of 247 times. NORML multiplied that by the $2.95 per article the paper charges for archived pieces, to arrive at a total potential damage figure of $728.

Righthaven was not eligible for statutory damages -- which could have ranged from $750 to $150,000 -- in the lawsuit against NORML because the copyrights allegedly infringed by the group were not registered at the time of the alleged infringement.

The settlement came about as a result of a rare strategic maneuver by Randazza, who filed a court document offering to resolve the case under Rule 68 of the Federal Rules of Civil Procedure. That rule provides for the shifting of litigation costs should a party obtain a judgment less than the settlement offer.

While the tactic resulted in an agreement in this case, it's unclear whether the rule's cost-shifting provisions apply in copyright infringement matters, according to Santa Clara University law professor Eric Goldman.

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