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Bloggers beware: a cyberspace firm has begun suing Web posters for copyright infringement.

Righthaven LLC is a Las Vegas-based technology company allegedly formed for the sole purpose of obtaining the rights to newspaper articles from news chains and suing for copyright infringement of those articles.

Since its creation in 2010, Righthaven has filed innumerable lawsuits against alleged copyright infringers and at the same time has been the subject of criticism far and wide. Insurers that publish blogs on their websites should tread carefully when citing outside materials to make a point.

Briefly, copyright protection is extended to original works of authorship. The author has exclusive rights to do whatever he or she wants with such works. However, these rights have limitations, including "fair use" Section 107 of the U.S. Copyright Act states that fair use of a copyrighted work is not copyright infringement. When determining fair use, a court must consider four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. No one factor is conclusive.

The interesting twist in the Righthaven lawsuits is that even bloggers who repost columns and provide the appropriate links and credits to the work are targeted as defendants. So, what's an insurance blogger to do for protection from Righthaven?

1. Do not copy at all ... admittedly, an inconvenient option.

2. Hope you fail under the fair use limitation. In Righthaven LLC v. Really One Group, et al., one of the defendants posted five paragraphs of an article on his website and included a link to the original article. In response to Righthaven's lawsuit, a defendant filed a motion to dismiss, asserting that the reproduction of five out of 30 paragraphs did not give rise to infringement. Analyzing the four factors noted above, the court agreed.

3. Register with the U.S. Copyright Office if you are an online service provider. The Copyright Act states that an OSP will not be liable for infringement if it has designated an agent to receive notification of alleged infringements and if, upon notification, it removes or disables access to the material. The math is simple--a small fee to register and be safe, or a $150,000 statutory free for infringement. Unfortunately, Righthaven can still sue, and one may be inclined to simply settle to save on attorneys' fees.

4. Consider whether Righthaven has both subject-matter and personal-jurisdiction standing to sue. These issues were considered in Righthaven LLC v. Majorwager.com, where Righthaven won on both grounds against a defendant from Canada. Regarding personal jurisdiction, under Nevada's long-arm statute, the court concluded that Majorwager had met the "minimum contacts" test. Moreover, since U.S. courts were better equipped to handle U.S. laws, the copyright was registered in the United States and the infringement took place in the United States, personal jurisdiction was appropriate.

As for subject-matter jurisdiction, the judge noted that an assignee only has standing if the interest in the past infringement was expressly included in the assignment. Here it was, so defendant's motion to dismiss was denied.

In short, be vigilant and be careful, and always bear in mind that Righthaven is watching.

Contributor Narine Bagdassarian is an attorney and student-at-law at Cozen O'Connor's Toronto office. She can be reached at nbagdassarian@cozen.com.
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Title Annotation:Regulatory/Law: Legal Insight
Author:Bagdassarian, Narine
Publication:Best's Review
Geographic Code:1USA
Date:Feb 1, 2011
Words:564
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