Wednesday, June 1, 2011

Copyright Law

Another article I couldn't sell:

Copyright Law

Imagine that one day, out of the blue, you find out that you are being sued for $75,000 in federal court for “willfully” destroying someone’s Ferrari.  You receive the complaint and after careful reading you discover that you are being sued because a friend gave you a ride to the market.  In the parking lot, unknown to you, your friend accidentally dinged that Ferrari’s door.  Your friend did not know that he had done it, and in fact the damage is minor.  It might well buff out, and at worst, repainting the door might cost a few hundred dollars.  The owner of this Ferrari, however, has decided to make an example of both of you—and make a pile of money while he is at it!

You contact attorneys, and find out that it is going to cost you at least $30,000 to contest this in court.  If you resist, the Ferrari owner (who is a lawyer) will file discovery motion after discovery motion to force you to discuss why you went to the market, where you went before and after, prove that you do not have a history of intentionally dinging doors on Ferraris, and see if you made any money as a result of that trip to the market.  The whole time, your attorney will be billing hours—and the Ferrari owner will be billing hours. 

The chances that the Ferrari owner will win $75,000 in federal court are very small—but there is some risk that if the judge rules against both of you for several hundred dollars for repairing that Ferrari, you will also have to pay the Ferrari attorney tens of thousands of dollars for his billed hours, and tens of thousands to your attorneys.  The Ferrari owner gives you a choice: settle out of court for many thousands of dollars (plus the thousands that your attorney is charging) over what was arguably something that would wax out. 
It gets better.  After you settle, you find out that the attorney who owns the Ferrari for the damage you did to his car—does not even own the car.  He rented the car from the actual owner for the purpose of leaving it in parking lots, hoping to accumulate some door dings so that he could file these suits, demanding exorbitant damages.

Does this seem absurdly unfair?  If you have been following the blogosphere at all, you are probably vaguely aware of an operation called Righthaven that has been suing bloggers, including yours truly, as well as New Media organizations such as PajamasMedia.  Even if you do not know anyone that has been sued by Righthaven, trust me, your time is coming.  At current rates of filings, I expect that within a few more years, Righthaven defendants will be numerous enough to start swaying national elections: 274 suits as of May 14.

What are these suits about?  Copyright infringement.  At this point you are probably wondering, “Why did you infringe on someone’s copyright?”  The short answer is that many of those being sued either did not infringe, or did so entirely by accident.  The legal definition of “fair use” is vastly less clear than it should be.  The U.S. Copyright Office is quite clear that there is nothing clear in this area: “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.”  In at least one case, even an entire copyrighted article that was copied still qualified as “fair use.”

Righthaven’s suits were initially for $75,000 per infringement—later bumped up to $150,000 per infringement.  Considering that the early suits were for copying of newspaper articles, this might seem like a lot of money for copying one article (with attribution and links back to the original newspaper).  And yet my co-blogger (who was the one who mistakenly copied an entire article) and I decided to settle (for an amount that I cannot disclose as part of the settlement agreement), because we could not afford to fight it.  Like nearly all of the others who have been sued, Righthaven’s suits were bolts out of the blue.  There was no request to remove the infringing articles—straight to filing a suit.  

In some cases, defendants claim that they were not served with the lawsuit before Righthaven asked the court for a default judgment.  I do not find this at all unlikely: the person who “served” me claimed to have had a conversation with me through my front door; this is simply not true.  I did not answer the doorbell.  The person who served my co-defendant claimed to have left it with his adult son.  My co-defendant is 24 years old.  Do the math: he cannot have an adult son, and no one by the name of the person served lives at his address.  I have since found out that this type of “sewer service” is actually surprisingly common in some parts of the country—a way to get a default judgment by making sure the defendant does not know he is being sued.

The only good news that has come out of this disaster is that some of the defendants have powerful friends, such as Democratic Underground, on whose behalf Electronic Frontier Foundation filed countersuit.  (Alas, our little website, The Armed Citizen, was gun rights related, and by definition, has no powerful friends.  But we do appreciate the many little people that helped with contributions!)  Now, Righthaven is whining about the costs of having to defend itself from the countersuits.

I used to hear a lot of really nasty lawyer jokes, and I tried very hard to keep some balance on this, because I know a lot of lawyers.  I am pleased to say that with one exception, I have yet to talk to a lawyer who regards what Righthaven does as ethical—and a few who thought it might be on the borderline of extortion.  But I do increasingly think that the power that these type of suits give to lawyers might be a case for making lawyers illegal.  Require everyone who has a claim to file suit on his own behalf, and defend on his behalf.  For a corporation, require the CEO to file and defend suits personally.  I think would be amazed at how rapidly the litigation madness of America would disappear.


  1. To the contrary - it would make lawsuit abuse far more profitable and prevalent.

    The burden to filers is not deterring. Shysters like Righthaven or William Lerach have no trouble finding stooges.

    One very common form of lawsuit abuse is to file a motion for discovery that would cost the other party several hundred thousand $ or more to fulfill; then offer to settle for $100,000 or less.

    In your world, any person of importance or wealth could be subjected to severe harassment merely by filing lawsuits against him. If he has to appear in person for every suit, his life can be jerked to pieces - unless he pays off. What if he is sued simultaneously in three different jurisdictions?

  2. In fact, lawyers or pro se plaintiffs can and do sue people of importance or wealth in multiple places. Crazy people file these suits alleging vast conspiracies against them on a regular basis. This does not change that--but it does create a situation where the countersuit for abuse of process would destroy people who sue just to get some quick cash.

  3. Maybe somebody will cut-n-paste your entire unsold article about Copyright Law, Clayton, and Righthaven will sue 'em on your behalf.

    My favorite recent attorney humor... Jay Leno reported that President Obama's approval ratings took a little spike after Osama bin Laden was removed from the scene... but not nearly as much as Dick Cheney's, after he shot that lawyer in the face.