Copyright lawsuits filed by Nevada's Righthaven LLC on behalf of the Denver Post against chronically ill, autistic blogger Brian Hill and others have thrown a scare into plenty of local website operators. Like the man behind Rocky Mountain Right, Sean Harrington, overseer of KnowYourCourts.com, which features court documents that could contain Post materials, has chosen to pull his site offline temporarily rather than risk litigation.
Harrington first became concerned after the Post ran a note to readers last November announcing that it would zealously protect its copyright. Representatives of the Post and its owner, MediaNews Group, didn't return calls for comment about this shot across the bow, but the reason for the warning became clear after Righthaven sued a South Carolina blogger for unauthorized republication of a Mike Rosen column. A similar suit against Internet giant Matt Drudge followed, with at least thirty complaints filed in Colorado to date.
Righthaven, which obtains the rights to Post material before suing, typically asks for an allegedly offending party's Internet domain and a cash payment to prevent the case from preceding to court. According to Hill's attorney, a Righthaven lawyer threatened to garnish the twenty-year-old's disability payments if he didn't pony up $6,000 to make the problem go away -- an amount far beyond his means. Hill's website, uswgo.com, has also suspended operations.
Harrington hasn't been targeted by Righthaven to date, but late last year, he decided to disconnect KnowYourCourts.com anyhow -- a decision initially explained by the tongue-in-cheek declaration that "KnowYourCourts.com has been purchased for the sum of $150,000 and will reopen in the coming weeks under new ownership and management."
The actual reason? "I have 2,500 documents, PDF files as well as voluminous HTML, and that made me very, very nervous," he concedes. "I don't know if there may be pleadings and exhibits that contained registered, copyrighted works, protected works. And because I don't know the answer to that, I took the entire website down."
But aren't court cases public documents? And wouldn't that status inoculate him from a copyright lawsuit? Harrington, a law student, fears not. "That argument would posit that the person who originally filed the document would be the person who infringed on the content and I simply became a republisher," he says. "But I'm not aware of any case law that states that because someone has purportedly converted it into the public domain in a lawsuit, that would mean I could republish copyrighted work. I would be inclined to think case law would hold just the opposite."
Over the past few months, Harrington has heard from a number of people, including a couple of reporters, who are unhappy that his rich cache of material is unavailable. But rather than simply bashing the Post and Righthaven for forcing him into this position, Harrington takes a more nuanced view. "I think it's accomplishing what the clients would hope for it to accomplish," he says. "And it's a great business model for Righthaven, because they're forcing defendants into small settlements. Let's say the filing fee is $250 bucks, the fee for the process server is $50, and maybe they're investing $1,000 in attorney's fees and costs -- but two or three weeks later, they get a $5,000 settlement. So they're making three or four times their investment. Meanwhile, clients are just happy somebody is out there scouring the Internet and making sure Denver Post articles aren't being reproduced, which is a legitimate concern."
At the same time, however, Harrington suggests in an article for the Minnesota State Bar Association's website that Righthaven's methodology may commit two obscure legal sins: champetry, which he defines as "an improper arrangement where a party with no interest in a lawsuit agrees to finance and bear the expense of litigation in exchange for a portion of the proceeds," and barratry, or "creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter."
In his view, "I feel Righthaven is pushing the boundaries to the point of possibly getting sanctions... They didn't own any of these works at the time they were allegedly infringed, and I don't think the 9th Circuit Court will hand them any victories. And if that's the case, their business model could go to hell in a handbasket very quickly."
In the meantime, Harrington has recruited a couple of volunteers to help him go through the content of his site to be certain the various files don't contain copyrighted material. But because he's currently preparing for law school final exams, he can't devote all his energy to this chore. Hence, he's uncertain if KnowYourCourts.com will return in a few weeks or considerably longer than that.
"I'm honored and flattered that people feel it's been a valuable resource, and I want to bring it back," he stresses. "But I want to make sure I have greater downside protection when I do."
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