woman on laptop.
(photo credit: REUTERS/Desmond Boylan)
Some time ago this column discussed the controversy surrounding so-called “patent trolls” – companies that sue for infringement of patents that they themselves are not using. Often these “trolls” are companies that don’t engage in inventing or manufacturing at all, and they thrive specifically by buying up unused and widely infringed patents.
Legally this tactic is unobjectionable; a patent is by definition a right of exclusion, but the tactic has raised some ethical eyebrows.
Recently we have seen the rise of a similar phenomenon: the copyright troll. A US company called Righthaven does not publish any original content or even syndicate secondary content. The company acquires copyrights from the holders after they have been already infringed and aggressively seeks damages from alleged infringers.
Often the company sues without first demanding that the infringing
material be withdrawn, typically demanding a cash settlement and the
forfeiture of the domain name where the material was posted. The cases
are typically settled out of court, reputedly for a few thousand dollars
per infringement (compared to the much larger sums initially
The approach has been criticized on fundamental grounds and also because its techniques constitute bullying.
What are the relevant ethical considerations? For the individual content
providers who sell their material to Righthaven, the benefit is double:
financial and artistic. The immediate benefit is obtaining a few
dollars from an article, photo or the like that has become widely
popular by repeated posting on the Internet, yet without any benefit for
the rights holder.
Publishing a particular popular item, traditionally the greatest boon to
a newspaper, has become a curse, as the more popular the item is, the
more likely readers will find it in pirated versions with neither income
nor credit to the original. The value of the infringement settlements
enables them to recoup some of this value.
The long-term benefit is discouraging infringement in the first place.
After word gets around that bloggers have been stung for inappropriate
use of material from a particular website, people will be much more
careful in the future and the paper’s proprietary content will be
The second reason is probably dominant, insofar as ultimately the amount
of money obtained by any individual content providers is evidently not
large, though Righthaven collects in aggregate tidy sums.
For many individual inadvertent or doubtful infringers, the harm is
likewise double. Financially, a small-time blogger with zero budget may
find himself faced with a six-figure lawsuit and a demand to forfeit his
domain name, which is his sole claim to fame.
Artistically, there is a chilling effect: These bloggers may find
themselves thinking twice not only before infringing, but also before
exercising their right to free speech, which includes fair use of
Both of these individual considerations extend to the public interest.
If content providers can’t protect their content, then the quality of
published content, including news and artistic material, will be
Quality content requires investment of resources, and if investments
can’t be recouped, it is the public who will suffer. Yet freedom of
speech is equally a public interest; the public’s right to know is
harmed by the chilling of legitimate speech and fair use.
I believe this troubling situation is ultimately an interim phenomenon.
As the activities of Righthaven and similar outfits become better known,
bloggers will become better informed. The line between infringement and
fair use will become progressively clearer to the bloggers, and the
line between inadvertent and deliberate infringement will become
progressively clearer to the courts.
It is hard to judge based on news reports whether Righthaven is actually engaging in inappropriate bullying.
But I think it is safe to say that the number of controversial instances
will soon decline as the rules of engagement became clearer to all
those involved – to the ultimate benefit of commercial publishers,
bloggers and the public.[email protected]
Asher Meir is research director at the Business
Ethics Center of Jerusalem, an independent institute in the Jerusalem