While Dr. Duke has published no response so far, I have now found an interview with Steven Gibson, the founder and lead attorney at Righthaven, in which he responds to specific questions about his operations and his motives. The full interview was published on January 6th, 2011 at CNNMoney, which predates the action against Dr. Duke, so it does not address why Righthaven assumes Dr. Duke got the photo from the Denver Post website. I replicate just a few of the more common questions below (after the jump):
CNNMoney: "If you operate a website (liberal or otherwise) and don't know what "fair use" is in the context of American copyright and Constitutional law, then I suggest you talk to your copyright lawyer and find out." That's a quote from Frederick's column. But fair use is open to interpretation. Would it be fair to say that your lawsuits are actively refining that interpretation for the digital age?
Gibson: That's a great question. Yes, I believe that there's no question that the fair use debate is a function of case law and on various facts that arise for court ajudication and jury consideration with respect for fair use. We are absolutely continuing to develop the law of copyright in the area in respect to fair use. There is very substantial guidance in the courts already that make it clear that the kinds of reproduction that Righthaven is addressing is not fair use.
CNNMoney: Not surprisingly, you've met with a large amount of criticism on the Internet, but you are within your rights to protect your copyrights. Why haven't an equally vocal group of advocates spoken out on your behalf?
Gibson: I receive numerous communications from the community represented by authors and publishers that are very supportive of us. You need to put things in perspective. What is the quality or the volume of the infringement community versus the creative community? There are generally more takers than creators.
Your work — merely because you published it on the Internet — they believe it's public domain. Unfortunately that is ignorance of the law. I think the more insightful commentary is whether the law needs to be changed. That's a legitimate debate.
Analysis: Gibson recognizes no difference between ignorance and malevolence. At least he does recognize that the DMCA can be changed.
CNNMoney: Righthaven has been characterized as being "Copyright Trolls," a construct based off the "Patent Troll" scheme of companies buying up under-protected patents and then suing people who have utilized the technology. What's your response to this characterization?
Gibson: If it's name calling without substance, it's not worthy of comment. If the comment is that we are taking a fresh approach to help stem the tide of infringement on the internet — and not intended to be merely pejorative — I don't have a problem with it. It's hard for me to reply to name calling, because it's not part of the debate of copyright protection or not.
Assuming that's not fair use, what is being really said? Is it a complaint that the infringement community was caught and is not obeying the law? Or is it that there is some enforcement out there, and that's not really a bad thing. If there's a community of thieves that complained vociferously and then called the people who were doing it bad names, then it is what it is.
CNNMoney: Many of the organizations that you have brought suit against are small, sometimes even non-profits. How has it come to pass that so many of the companies have been small and relatively underfunded or unable to pay for legal defense?
Gibson: There have been many organizations that are apparently well funded. We don't have the ability to determine the relative wealth when we file a lawsuit. There are many individuals that are wealthier than some companies, and there are many non-profits that have a funding stream that is substantial. I believe the 9th Circuit Court of appeals in the Worldwide Church of God case does not create an immunity against copyright infringement. If that were true, on a weekly basis, any nonprofit could copy Fortune magazine and distribute it. That doesnt make sense.
We believe that if a website publishes a work that is searchable, the fact that it may appear on a large media domain or smaller domain isn't neessarily going to redefine if it was redirected. If a viewer does a search, the topical story may first appear first on the non-profit rather than the original site. We don't discriminate in terms of infringement, whether the owner has a lot or a little money.
Frankly, if I thought about — it and I just did now — if Righthaven was after money only, logic would dictate that we would only going after people who had a lot of money. If pure greed was the only single motivator, we would potentially ignore those who don't have as much money as the others.
That said, we're a for profit company.... There's nothing in any legal doctrine that indicates that we do not have the right to operate in a manner that will have market constraints.
Analysis: Gibson makes a point; he's obviously not motivated strictly by greed if he's not applying a means test to his victims. However, it's not exactly great public relations to be suing a 20-year-old unemployable autistic man who lives on a $700 per month disability check for $150,000 over a single copyright violation, most likely done innocently.
CNNMoney: Why not do as most other media companies do, and ask that offenders take down the copyright material?
Gibson: I disagree with the premise of your question, but for the sake of argument, let's assume the premise is true. You're asking why we don't do what someone else does.... I believe that there is a substantial growth of opinion and understanding that cease and desist letters are not effective in stemming the tide of infringement. If we as a society determine that copyright infringement is not something our society wants to see, and minimization is a societal good — if those premises are true — its fair to say there's little incentive for people who receive a cease and desist to stop illegally reproducing content. If you know that that you'll only get a letter....
Analysis: The problem here is that Gibson believes that all violators are equally malevolent. He recognizes no shades of grey; he does not differentiate between "sinning in ignorance" vs. "sinning against the light".
Steven Gibson refused to explain why he sues for $150,000, saying it's a technical legal matter and he's under advice of counsel not to elaborate. Gibson also says the issue of "harm" is not technically concordant with the principles of the copyright act, which means he assumes that the mere fact that a copyright violation has been committed is presumed to be harmful. This is in accordance with the principle of strict liability, a principle which needs to be limited or even completely eliminated from our justice system.
Gibson's strict legalism will have two unfortunate by-products:
(1). Increase contempt for the concept of copyright. Having some degree of copyright protection is essential to create a favorable climate for invention and innovation. However, copyright protection for intellectual property needs to be re-defined to correlate with the unique characteristics of intellectual property. Fair use needs to be better enshrined and defined.
(2). Increase contempt for lawyers. Lawyers are not well-regarded at this time; Gibson's actions have already exacerbated negative biases and stereotypes towards lawyers.