More on the copyright problems that took down "Armed Citizen"

Anything reproduced more than 3 months ago should be safe from a big penalty

To file an infringement suit in court, a copyright holder must first register the work in question with the U.S. Copyright Office. In addition, to qualify for statutory damages, the copyright holder must register the work within three months of publication of a work or prior to its infringement. In the case of The Armed Citizen, for example, the Las Vegas Review-Journal published an article entitled “Slain Store Clerk, 77, Mourned” in its print edition on May 17, 2010.

Three days later, Burnett posted the article in its entirety on The Armed Citizen, minus the authors’ names but including a link back to the Review-Journal. At some point, Righthaven discovered The Armed Citizen’s post. It registered the article with the Copyright Office on July 6, 2010, thus meeting the requirement that will allow it to seek statutory damages if it can prove that Cramer and Burnett knew they were committing infringement.

While it costs at least $35 to register a work with the Copyright Office and another $350 or so to file a lawsuit, the potential pay-off can be huge. A single instance of willful infringement can yield statutory damages of $150,000...

At Chillingeffects.org, a website that aims to protect Internet users from unwarranted legal threats, a FAQ advises that “the fair use doctrine, as currently interpreted by the courts, probably would not entitle you” to “copy an entire news article from a commercial news website and post the article on [your] site.” In an Online Media Daily article that reported on several of Righthaven’s earliest lawsuits, Sam Bayard, assistant director of the Citizen Media Law project, stated, “It’s unlikely that there’s any kind of fair use defense for simply posting an entire article, regardless of the motivation or beliefs about the law.”

Facing the specter of imposing fines, and lacking strong arguments for fair use, an out of court settlement is the least nightmarish scenario for many of the individuals and mom-and-pop organizations Righthaven has sued to date. With six full-time employees and an annual budget of around $1 million, NORML, the pro-marijuana advocacy organization, is likely one of the larger entities that Righthaven has sued. In addition, in NORML’s case, Righthaven was not eligible for statutory damages because it hadn’t registered the article it accused NORML of infringing within three months of its publication at the Review-Journal.

Even so, NORML eventually decided it made more sense to propose a settlement than to sink time and money into what could end up being a lengthy and expensive defense. “The cost of paying attorneys is what firms like Righthaven rely on,” Clayton Cramer charges. “The threat of having to spend thousands to tens of thousands of dollars on a defense pretty well guarantees that they can demand a settlement that is of similar scale—and get it.”

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