“If at first, the idea is not absurd, then there is no hope for it.” — Albert Einstein.
New and unconventional business models are bound to be dismissed as absurd, and unpopular when first implemented. When implementing your business model means that beneficiaries now have to pay for what they once received for free, you’re bound to be met with resistance. Knowing that, the most important thing to remember is to Be Prepared. If you’re not, you may end up running full steam into a brick wall. But even when that happens, the next most important thing to remember is to stop running into the brick wall. When that wall turns out to be tougher than you expected, you may find that you need a stronger weapon to break through it.
Did copyright litigation exist before Righthaven? Of course it did. In fact, the news industry itself is no stranger to copyright disputes. One of the more famous copyright disputes involved William Randolph Hearst and the Associated Press duking it out in front of the US Supreme Court. But Righthaven’s business model is nevertheless original in that it’s the first time we’ve seen a business form out of the news industry dedicated to managing and monetizing their content as an IP asset.
Since treating IP as an asset is one of the central themes of this blog, I sat back and watched the Righthaven litigation campaign unfold for a long time before commenting last month on the business model in general. To be honest, a lot of the criticisms of Righthaven were just “white noise” in my head. Prior to starting Gametime IP, I spent several years in private practice, representing the interests of patent owners attempting to license and monetize unlicensed use of their technology. In that process, I’ve been called (and have heard my client called) every dirty name in the book. I chalked most of this up to the entitlement mentality, and assumed the Righthaven criticism was made in a similar vein.
But since sticking my nose in the Righthaven debate, I’ve picked up a distinct element of criticism specifically characterizing the copyright owner’s conduct as “sloppy.” For example, some critics point to the fact that Righthaven claimed in court filings to hold certain, exclusive rights that they had, in fact, granted back to the original content owners. Others point out Righthaven’s citations to evidently non-existent legal authority. I glossed over much of this criticism because these represent errors in execution, which can fowl up even the most well thought-out business models.
When entering uncharted waters, as Righthaven has, it should go without saying that you best come prepared. Whenever disputes over business models, legal rights and bargaining power coincide, things have a way of turning nasty very quickly. Just witness an example from the patent assertion world, where Juniper admittedly filed a false marking claim solely to impose costs on an inventor that was trying to license his patent to Juniper. When cornered, rarely do opponents simply “roll over” and admit defeat. The corporate giants, like Juniper, are more likely to try and run right over their adversary. (Generally, these bullies don’t settle cases because it’s the right thing to do, they only do so when its less painful than the bumps and bruises they’ll experience trying to knock you down.)
The smaller type of opponent that Righthaven has been cornering tend to react a little differently. Most of them know they can’t beat you at your game, but they can lash out, inflict damage where possible, and attract attention of larger predators (the enemy of my enemy is my friend). In some sense, this worked for the Righthaven targets, as the Electronic Frontier Foundation has gotten its lawyers involved with some of these cases.
Whether you’re targeting big or small opponents, IP assertion entities like Righthaven should expect to find themselves getting into a few fights, and it needs to win (or go away). Otherwise, there really is no point to the business model. IP monetization is simply not as easy as filing a lawsuit and holding your hand out to wait for money to fall in it. Your opponents will want (and deserve) to know why you say you’re entitled to payment and why there’s no viable defense to their actions. The effective IP owner’s will communicate this information effectively, efficiently and (especially since the courts are involved) professionally. Lawyers are one of the weapons at the disposal of both parties, and they’re deployed to handle the brunt of these battles (fought primarily with words). Righthaven may be applying one of the most basic rules of survival and combat, which is: if your opponent has a weapon, find a bigger or better weapon.
Enter Dale Cendali. When she moved to Kirkland & Ellis in 2009, AboveTheLaw described her as a “superstar” and “Bad-Ass Litigatrix.” She won a lawsuit for JK Rowling which shut down the Harry Potter Lexicon publication. She also helped the AP obtain a settlement with Shepard Fairey over the rights to the Obama-Hope poster. Along the way, she’s supposedly tangled with, and defeated the legal team from Stanford University’s Fair Use Project.
I still don’t know how it will end for Righthaven, but for now, it looks like they’re here to stay and they intend to win the battles they’ve started. Meanwhile, word about Righthaven’s business, and the publications they’re associated with continues to spread. Author Radley Balko, who took down a post linking to the Las Vegas Review-Journal, suggests that the newspapers doing business with Righthaven will render themselves “completely irrelevant in the information age.” I don’t know if he’s wrong or right, but I agree with Balko’s approach. Every author, blogger and publisher can decide for him or herself whether copying something is worth the price.