Defending the sanctity of copyright, or purchasing the works of others for cheap settlement cash?

BLOT: (11 May 2011 - 12:40:50 AM)

Defending the sanctity of copyright, or purchasing the works of others for cheap settlement cash?

Let's say Blogger B posts a photograph (P), from Newspaper N. Now let's say that Company of Lawyers C buys the rights to P from N so that it may sue B. If P then Q? QED. Am I right?

Ok, enough alphabet soup. This is how this works. Newspapers generate [as well as buy] content: a mixture of prose and data and photography. Sometimes a news aggregator—link farms like The Drudge Report—or a blogger will then copy and paste said content into their own system. Sometimes with attribution and linkbacks and such, and sometimes without. There are two ways of looking at this. The first is that it brings attention to the content, what you might call focus direction. Thousands of bloggers engage in this continually, trying to get people to talk and link to them for the purpose of Google hits and such. The other is that it waters down the original content, distorting the concept of the original. This is focus diversion. There is a company who finds materials they think are suitably focus diverted—in other words, reposted in a way that destroys the profitability and the, well, I'll say sanctity, of the original—and acts upon it. Except this company does not generate content. It finds a transgression. Then it buys the rights to the transgressed content. Then it sues.

You can read more about it at the New York Times online: "Enforcing Copyrights Online, for a Profit". It is much like I described it, just in case you think I am engaging in a bit of hyperbole for my usual sarcastic, world-hating fun. I warn you, NYTimes can't help but bring up a bit of the "stay at home mother" and "man with a health condition" rhetoric to make a bit of an emotional plea bargain. Still, even with the writer's sympathies clearly against Righthaven, the "C", above, you have to appreciate, in concept if not in practice, that it is a natural outcome of such rampant content grabbing. Sometimes quite respectable sources copy and paste entire news articles without attribution, backlinks, or any such thing.

I just don't know how valid it is. Presumably the contract between the newspaper and Righthaven would include a series of rules that the newspaper itself is utterly immune from copyright infringement (and presumably the newspapers selling content to Righthaven are quick to alter all text that explains that they are displaying someone else's content and are ok that they have to get permission to republish their own articles and keep them on their website). Also presumably the newspaper has a contract with its actual content creators that says that the rights to their works can be sold and transferred at will. Which is likely fine, because no doubt that is a work-for-hire situation and those writers got rid of their rights the second they got a paycheck. God knows what legal tangle comes out of selling works for hire that were entered into agreement with one body but now involve a third entity after the fact.

I just don't know how well you can buy works after the infringement and then claim to be the injured party. Especially since they are going after some bits that went viral. I know, and presumably you know (you do now) that viral works are just as copyrighted as everything else (that is copyrighted), but that doesn't mean your average joe on the street realizes that just because there are 90,000 versions of "Hide Your Kids, Hide Your Wife," on YouTube that it doesn't mean that Antoine Dobson is in the public domain. I know people do sometimes claim pretty much exactly that, sometimes even claiming to be professionals who know intellectual property law (and work at Cooks Source). They are mistaken. On multiple counts.

No, I have a feeling that if a judge really tore into the structure of the case, there would be a lot of things that would not go in Righthaven's favor. Especially if it got to a high enough court to have the authority of questioning how upholding this constitutes protecting the creative process or even the concept of holding copyright itself. Once you establish that copyright is a commodity outside of the tangible presence of a good, well...let's just say it's not something that leads itself to fungibility. I think the most interesting potential outcome of this is what happens when one of the content creators sues Righthaven and the newspaper companies on the basis of moral rights. Something not super protected in this country but who knows, this might provide something of a test case when the photographer finds his or her image being used a settlement-ploy.

Finally, it casts a bit of a sad light on newspapers, who, in my eyes, come across a little like old codgers trying to whip out a loud "GET OFF MY LAWN" in any way necessary.

We already live in a world where lawyers can buy up debt from other companies (at a discount, natch) and attempt to collect and where lawyers can buy up patents after the fact try to collect on infringement, it was only a matter of time before lawyers tried this with copyright. But where patent law and debt law have some clearcut elements that make this possible, if not terribly profitable (I have no idea, it might be gangbusters profitable); copyright is rife with all sorts of interpretations. I'd say let it go to court. Outside of proving honest to goodness willful infringement, they are going to have to prove that A) they own the work in a real, legal sense and B) they suffered damages over the work. Which is really the Kafka-esque surreality of the whole thing, why didn't the newspaper sue? Also, if people are settling for 4+ figure amounts outside of court, how much did the newspaper sell the content to Righthaven for?

Besides that, stop posting stuff to your blog to get clicks so you can sell more expensive advertisment unless you plan to play by the rules. Fair use, look it up. My guess is that Righthaven, and the inevitable companies like them to follow, would have a hard time claiming a well-linked and attributed piece of fair-use (an excerpt or a photograph from a longer article) is actually focus diversion. If that's the case, then presumably any link to copyrighted content is diversion, and the web is in trouble. Also, companies that engage in such schemes (including the newspapers who profit by selling off their own oh-so-valuable content)? Ignore them. Seriously. Don't play with their content at all. Add their URL to your browser's blacklist. Don't quote them or ever, ever link to them or reference them. Whatever you do, don't buy their product. It's safer that way. You won't accidentally end up quoting some figure you read there and getting a $150,000 lawsuit slammed against you.

[Note: I originally noticed this through EReads.com's post about it. They, by whom I mean Richard Curtis, has quite a bit on copyright, piracy, and so forth and it is often worth a glance. Plus, hey, some great books get sold through his company.]

Copyright

OTHER BLOTS THIS MONTH: May 2011