The letter posted on the homepage at the newly-acquired righthaven.com domain
(WEB HOST INDUSTRY REVIEW) — Having acquired the domain name of the notoriously litigious (and now more or less defunct) company Righthaven, the operators of Swiss web hosting company OrtCloud posted notice last week that they would use the property to create a new hosting business with the “spineful” mandate to treat take-down notices and other legal threats with healthy skepticism, and a respect for fair use.
To support its cause, the company enlisted the services of US-based attorneys Marc Randazza (whose defense work was directly related to the ultimate end of Righthaven) and Kenneth White. Both are active first-amendment and copyright lawyers, and both are notable legal bloggers (White at Pope Hat and Randazza at The Legal Satyricon).
Randazza, who bemusedly blogged in late December that the Righthaven.com domain was up for auction, says he was approached by the company after they acquired the domain.
“I had no prior relationship with them. But I guess they approached me because it would be pretty hard to be bidding on the Righthaven domain name and not at least know about my practice,” he says. “I’m just counsel for them. The only stake I have in it is I do find it incredibly full of lulz that I am now representing Righthaven.”
Randazza has a reputation on the other side of a DMCA suit as well, having taken a hard line against BitTorrent users who illegally downloaded content belonging to clients of his, including adult content producers, including some controversial tactics in extracting damages from defendants (he explains a “negligence” approach in a post on file sharing blog TorrentFreak). The key difference for him, says Randazza, is the fair use distinction in the Righthaven cases, and other IP trolling situations.
White says he, too, is involved as just an attorney, and that he was approached by the founders because of his work as a First Amendment lawyer, and the writing he has done on the subject. The company appears to have sought outspoken and engaged counsel on matters of copyright and First Amendment law because part of its mandate is to take stand.
“The aim here, I think, and the reason that I am happy to have been asked to help them,” says White, “is that [Righthaven] on the one hand is absolutely not out to host pirated things, and they’ve made that clear. But they are out to, as a host, show a spine, give some thought to the actual merits of takedown demands, and exercise the rights available to hosts and inform clients of the rights available to them.”
The premise, in a nutshell, is that online publishers (including bloggers) are vulnerable to copyright holders who are apt to use DMCA takedown notices sent to ISPs as a means of (along with at times fighting legitimate infringement) silencing criticism or ending discussions, with no regard for fair use.
White offers the 2009 example of a Ralph Lauren ad that sparked conversation on blogs because a model was Photoshopped to appear impossibly thin. The company sent out DMCA takedown notices to blogs that were critical of the ad on copyright grounds. In a BoingBoing.net post calling out Ralph Lauren for its tactics, blogger Corey Doctorow points out that his ISP, Priority Colo, passed the notice on to the customer to see if it “passed the giggle-test,” a policy that would probably fall under the new Righthaven’s definition of “spineful.”
Unfortunately, bloggers or other publishers that might ruffle a few feathers here and there, can’t necessarily expect their hosts to go to bat for their fair use rights, or even consider whether a takedown notice is frivolous. It can be pretty easy to scare some hosting providers into terminating service, which only reinforces the use of takedown notices as a first step for some IP holders.
This is where the new Righthaven intends to carve out its niche.
“I think they’re putting in the work to develop a process to really approach demands in a methodical and legally appropriate way,” says White, “that has an eye, not just to ‘what’s the easiest and safest way to process this?’ but ‘what are our client’s rights, and how can we assist them in vindicating those rights?’ And that means that when you get something that clearly ignores fair use issues, you might brief the hosting client about what their rights are, for instance.”
There’s no secret formula to the project. It’s an ethos, and a business model. And it’s not cheap hosting. It is, as the company describes on its site, “a premium service with a built-in provision for legal expenses and a commitment to go to the mattresses in defense of your publishing rights.”
The fact is, this is a stance that any hosting company could take (and some certainly do) with the right point of view, some study into the ins and outs of first amendment and copyright law, and some solid legal counsel.
It could be that the actions of this and other hosting companies create an environment where this kind of attention to the publisher’s rights is a reasonable expectation of a hosting customer – where there’s a certain amount of shame in being what the revamped Righthaven would presumably refer to as “spineless” in the face of a takedown notice.
Randazza isn’t sure Righthaven is going to change much about the hosting market’s aversion to litigation, or the inclination of a certain kind of hosting provider to cover its bases.
“I think it’s just going to fill a niche that doesn’t have anything serving it right now,” he says. “It’s going to pick up a very narrow segment of the market where, say, you’re going to go launch a website that’s critical of a financial institution. Or you’re going to criticize a well-off public figure. If you’re going to speak truth to power, this would probably be the place you’ll start for web hosting.”
About Liam Eagle
Liam Eagle has worked as a contributor to the Web Host Industry Review since its inception in 2000, and as editor since 2003. He has been editor of the WHIR's print magazine since its launch. His daily involvement in the gathering and reporting of Web hosting news and his regular interaction with Web hosting leaders gives him an uncommonly broad appreciation of the issues and tends facing the business. Through his WHIR blog, Liam spots Web hosting trends and offers opinions on the industry-wide impacts of major developments and the motivation behind big announcements. Follow him on Twitter @liameagle
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