Defense Attorney Fights for Internet Free Speech
By Keith Hansen
After some legal posturing and sparring, it appears that a young independent journalist and a law firm masquerading as a news company are headed for a full-blown fight in federal court, where the issue is whether corporate profits can trump the free speech rights of Americans to debate some of the most important topics of the day.
As reported in AFP’s Feb. 28, 2011 edition, Right-haven LLC is a copyright holding company that purchases copyrights for material—most of which come from The Denver Post and Las Vegas Review-Journal— then uses a phalanx of lawyers to sue website operators and bloggers who use the content with no knowledge it had become Righthaven’s property. The most glaring example of Righthaven’s tactics— described by copyright attorney David S. Kerr as “scorched-earth litigation”—is the suit it filed against 20-year-old Brian D. Hill. Righthaven asked for $150,000 in punitive damages, but offered a settlement figure of $6,000.
Hill—whose only means of support is Social Security disability—can afford neither option. Hill’s alleged misdeed was using a photo on his uswgo.com website that he found through a search of the Internet, not knowing the image first appeared in The Denver Post and was later purchased by Righthaven. Hill learned he had become a defendant in a federal lawsuit via an e-mail sent by Las Vegas Sun reporter Steve Green, who attached a copy of the suit.
Immediately, Hill removed the photo and engaged Righthaven attorneys in conversations that reached no acceptable solutions for either party. Upset by the lawsuit and pressured into responding to a court summons, Hill wrote not that he had unknowingly committed copyright infringement, but that he couldn’t pay the settlement amount—an admission Right-haven seized upon to move the court to find in its favor. Following Hill’s response, Kerr, an attorney with Santangelo Law Offices
in Fort Collins, Colo., offered his services pro bono. Kerr is also a member of the Electronic Frontier Foundation, a non-profit organization dedicated to the preservation of digital rights.
When his firm’s founder, Luke Santangelo, heard that Righthaven’s attorneys were threatening to take away Hill’s disability, Kerr recalls, “Santangelo said, ‘I’m on board. Copyright protection is important, but destroying people’s lives with copyright is not what we’re about’.”
After notifying the court Feb. 24 that Hill was being represented by Santangelo, Kerr initially requested that AFP not run a follow-up story about Hill’s case, indicating he had been engaged in settlement negotiations with Righthaven and wished to avoid damaging the talks because of any critical press Righthaven might receive. But the negotiations broke down. Asked if Hill’s tacit admission of guilt in his response to the court summons might negatively impact his case, Kerr told AFP, “I got involved with this case because of Brian’s story. I think he’s somebody that highlights my personal feelings about how copyright law has been turned into a tool to hurt people, not to protect expression and creativity. I think that copyright laws need to reflect the 21st-century reality of digital media.”
Kerr believes going to trial may raise some serious issues that so far have not been fully addressed. “Unless these cases are highlighted,” Kerr said, “we don’t have that conversation about these types of laws. When someone like Brian is looking down the barrel of a $150,000 lawsuit for what he’s accused of doing, then maybe we can start sparking these kinds of conversations and have the opportunity to get a wider audience involved to start changing the law to allow expression.”
Although a settlement might still be reached, Kerr stipulates that if the case goes to trial, it won’t be tried as a First Amendment test, but its outcome will most certainly have free-speech implications.
“If people are allowed to sue Brian for what he allegedly did,” Kerr said, “then that has the effect of reducing free speech . . . so, in a way, it’s not a First Amendment violation, but using copyright [law] in this way prevents and chills free speech.”
Keith Hansen is a veteran journalist and radio talk show host. His website can be found at beyondthegrassyknoll.com.
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(Issue # 12, March 21, 2011)