Robert Zelnick, an attorney at McDermott Will & Emery, recently wrote an interesting article on Righthaven LLC, a company that buys up copyrights and then licenses them to, or threatens legal action against, organizations and individuals that post them on the web. This article about the new “copyright troll” is interesting and illuminating. There are, however, a few oversimplifications and at least one point overlooked. First, “don’t copy” is just too simple a solution. As an expert witness in copyright litigation, I know that things can look the same without being copied. Also, there are the fair use exceptions that leave lots of wiggle room. So even if someone doesn’t copy at all, there’s a chance of being hit with a lawsuit because two texts are surprisingly similar. And not copying at all means society will lose important works of commentary, satire, and news.
Second, Zelnick doesn’t foresee the possible ultimate business model of Righthaven. While I don’t agree or disagree with Righthaven’s motives, I believe I see where they’re going. Jerome Lemelson was perhaps the first patent troll, but definitely the first to reach $1 billion in personal fortune from his effort. My understanding is that he started by bringing actions against small companies that could not easily defend themselves and Japanese companies that didn’t understand U.S. patent law. These companies saw his royalty fees as small compared to the costs of hiring lawyers to study and defend the patent infringement suits he brought. After amassing a huge war chest, Lemelson went after bigger and bigger companies and sought bigger and bigger payments. The more capital he had, the easier it was to win these battles.
While Righthaven will probably never collect the multimillion dollar awards that Lemelson did, consider that nearly everyone in the world writes. There are thousands of novelists, thousands of journalists, thousands of researchers, and millions of bloggers. And copyright also applies to artists, filmmakers, and computer programmers. Righthaven, and companies like it, can potentially collect more than Lemelson even hoped for, and at less expense.
I believe that Righthaven and its business model should not be underestimated. The solution to protecting yourself is more complex than simply not copying. The exciting part is that this new business model will create new areas of legal effort and will require the best technology to allow the protection of both copyrights and free speech.