Righthaven's Not Part of a Conspiracy, They're Just …

If you democratize the media, putting the power of the press in the hands of anyone who is moved to publish their thoughts, you are going to hear from conspiracy theorists. That's part of the explanation, I think, behind the conspiracy allegations made about copyright thugster Righthaven. Many bloggers have intimated that Righthaven has connections to the Obama administration, and is thus part of a left-wing conspiracy to silence right-leaning citizen pundits. Others have pointed to the conservative ties of Righthaven-partner The Las Vegas Review-Journal, along with its apparent reluctance to sue Tea Party candidate Sharon Angle, and thus people have suggested that Righthaven is part of some right-wing racket. The other reason, I think, that people tend to think Righthaven must be politically motivated is a sense that what Righthaven is doing is so mean and absurd, there must be some ulterior motive. But the real explanation is both simple and sad. They're just jerks. I use the word "jerk" advisedly. I'm a law professor, and I try to resist using intemperate language. But that's the most accurate word I have. It says something nice about the human race, something about our inherent idealism and irrepressible hope, that so many people want to come up with a morally-driven rationale for Righthaven's behavior. But the fact is, many people don't care about anything bigger than themselves. Righthaven is their product. This is a point I've made before: As you go through a week, you accumulate numerous opportunities to sue people. Most of these would-be lawsuits aren't worth more than a dollar in what lawyers call "nominal damages." But it is a peculiar feature of the Copyright Act that silly, trivial infringements are compensable in the thousands of dollars. That's thanks to the law's provision for "statutory damages." In many of its cases, Righthaven has the legal right to sue and recover statutory damages. That's a power that the U.S. Copyright Act has conferred. But our whole legal system is predicated on the fact that people will use it but sparingly. That includes lawsuits over copyright infringement. Our current copyright law is a creature of decades past, a time when the only real participants in the media were businesses with a threshold level of capital and business management. Back then, the concept of statutory damages might have made sense. And it still might make sense so long as copyright owners exercise a level of decency and self-restraint. But Righthaven has proven that you can't count on everyone to do the right thing. Where the law has created a legal way to extort money from hapless netizens, Righthaven has stepped in for some quick cash. They're not evil geniuses. They're not right-wing extremists. They're not left-wing zealots. The truth is much worse. They're just jerks.

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