June 28, 2011 | By Kurt Opsahl

Righthaven Cheerleader Wanted by Irony Police

Sherman Frederick is the former CEO of Stephens Media, former publisher of the Las Vegas Review Journal, and one of Righthaven’s biggest cheerleaders. When the litigation campaign of Stephens Media's copyright enforcer Righthaven first got underway, Frederick famously wrote “So, I'm asking you nicely once again—don't steal our content. Or, I promise you, you will meet my little friend called Righthaven.”

In the wake of last week’s ruling against Righthaven in Righthaven v. Democratic Underground, Frederick wrote an unintentionally ironic column for Stephens Media entitled “Content protection -- Night of the unthinking commentator.” Frederick starts out with an ad hominem attack, comparing bloggers commenting in favor of the Nevada federal court’s ruling to “a bunch of kids camping out in the backyard, sticking a flashlight under their chin and telling each other scary stories.”

Following his strained and somewhat nonsensical metaphor, Frederick suggests that readers should instead look at three posts by GametimeIP blogger Patrick Anderson. Frederick links to the three posts, and then copies, verbatim, from each. Five sentences from the first article, three from the second, and ten sentences from the third. The quotes are not denoted as such, but basically everything after "Article 1, which in part points out:" is copied.

Which is, to say the least, quite ironic. Righthaven v. Democratic Underground is a case about copying five sentences from a Review-Journal news article. To bolster his claim that commenters are writing without thinking about the real IP issues, Frederick does exactly what his company has contended was infringement. Without, apparently, thinking about it.

The irony does not end there. Frederick claims that the bloggers writing about the decision “mischaracterize reality when it comes to newspaper attempts to control its own content.” As you may recall, in the Democratic Underground case, Righthaven argued it could sue because it was the true owner. Judge Hunt ruled that Stephens Media (the publisher of the Review-Journal newspaper) was actually the owner of the news article. Thus, when Frederick refers to “newspaper attempts to control its own content,” he is unintentionally agreeing with the judge by admitting that the content is the newspaper’s—as opposed to Righthaven’s.

As for the substance of the linked blog posts, blogger Anderson (who once worked at the same law firm as Righthaven CEO Steve Gibson) disagrees with the court and most commenters. While Anderson's analysis is not particularly persuasive, it is not surprising that Frederick was delighted that a blogger with a law degree agreed with him. It is perfectly appropriate for Frederick to links to and quote from the GametimeIP blog to add to the conversation. If only Frederick had realized this was acceptable behavior before he introduced the Democratic Underground to his little friend.

If you don't agree that these excerpts are fair use, however, you'd be interested to know that Anderson decided to put the copyright rights for each of the three articles up for sale. Unlike Stephens Media's deal with Righthaven, GametimeIP is offering a total assignment, including the right to sue for past infringement.

Hat tip to the Righthaven Victims blog for uncovering this irony.

Update: Anderson wrote to clarify that he "left Dickinson Wright well before Gibson was hired, and ... had never heard of him until the Righthaven news."

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