A blogger who reposts a newspaper article is similar to a passerby on a street who admires a stranger's car and decides to take it for a spin. So says Sherman Frederick, publisher of the
Las Vegas
Review-Journal.
In his recent column "Copyright theft: We're not taking it anymore,"
Frederick attempts to explain why he tapped the copyright enforcement outfit Righthaven to file 22 and counting lawsuits against nonprofits like the National Organization for the Reform of Marijuana Laws, sports-related
sites and individuals like a local real estate agent.
Frederick launches into an extended analogy involving a stranger stealing a Corvette from someone's front yard, concluding with this
passage: "When it comes to copyrighted material -- news that my company spends money to gather and constitutes the essence of what we are as a business -- some people think they can not only look at
it, but also steal it," he writes. "And they do. They essentially step into the front yard and drive that content away."
That argument isn't only ludicrous, it's an embarrassment to the
newspaper.
Sharing a news article -- one that's available to a broad audience online -- obviously differs than stealing a tangible good like a car, which can only be driven by one person at
a time.
What's more, Frederick doesn't even attempt to argue that the paper was harmed by any of the alleged copyright infringement perpetuated by Web site operators. At least when the record
industry sued file-sharers, the labels attempted to show that the availability of free music on peer-to-peer networks enabled people to stop making purchases, resulting in a drop in revenue.
By contrast, the newspaper's articles were already available for free. Further, many of the sites sued by Righthaven linked back to the newspaper. If the paper lost even one cent in revenue because of
these posts, it hasn't yet explained how.
There's another reason why this car-theft analogy is off-key: Anyone who takes off with a stranger's car knows -- or certainly should know -- that he
or she is depriving the owner of the ability to use that car. Few people would attempt to argue that they should have the right to joyride simply because they feel like doing so.
But many Web
users assume that once a newspaper posts free versions of stories, the paper intends for those stories to be read by a broad audience. Perhaps those users are mistaken; perhaps they have no legal
justification for reposting the stories in their entirety. But they, unlike the car thief, didn't realize they might have been breaking the law.
On the contrary, several of the defendants told
MediaPost that they assumed they were paying the newspaper a compliment, or at least helping it out, by distributing its articles and linking back to the original.
What's more, neither
Righthaven nor the Las Vegas Review-Journal asked the sites to remove the material before suing. While the law doesn't require content owners to send cease-and-desist letters before suing, many
content owners -- especially news organizations -- do so.
Marc Randazza, an attorney who is defending NORML in the lawsuit, shared some of his thoughts about the Corvette scenario with
MediaPost. "The real analogy is this: You have a 1967 Corvette in your driveway, and you charge people $2.95 to take pictures of it. Someone drives by and doesn't know that you charge to take pictures
of it. They take a picture, and you come running out of your house with baseball bat and demand $5,000 or you'll smash in the windows on their car."
Frederick, however, doesn't seem to realize
that it doesn't look good for a newspaper to sue its readers for allegedly distributing its stories. Remarkably, he not only defends the lawsuits, but urges other content owners to also enlist
Righthaven. "It is our primary hope that Righthaven will stop people from stealing our stuff," he writes. "It is our secondary hope, if Righthaven shows continued success, that it will find other
clients looking for a solution to the theft of copyrighted material."
Continued success? Righthaven has yet to show any success, judging from the court records. And it's not clear the company
ever will. A sympathetic judge could well decide that the Web site operators infringed on copyright, but that they should pay only the minimum possible damages. And should that happen, Righthaven and
the newspaper could end up gaining very little from this ill-considered initiative.