9th U.S. Circuit Court of Appeals Dismisses Righthaven Case That Won Key Fair Use Ruling

Court Tosses Righthaven Fair Use Appeal

The dismissal was requested by the nonprofit Center for Intercultural Organizing (CIO) in Portland, Ore., which won a key fair-use ruling last year against Righthaven.
The dismissal was granted Wednesday by the 9th U.S. Circuit Court of Appeals in San Francisco, which cited case law that appeared to back arguments by the CIO that Righthaven could no longer participate in the case since creditors had seized the copyrights it sues over. In layman’s terms, the CIO argued Righthaven no longer had a dog in the fight so the fight was over.

Recall that back in January, Google filed a friend of the court brief in this case concerning the Center for Intercultural Organizing (CIO), which involved the posting of an entire 33-paragraph R-J story without authorization. The Electronic Frontier Foundation (EFF), the Digital Media Law Project, Public Knowledge and several law professors joined together and filed a friend of the court brief as well.

See: VEGAS INC article in full

Nonprofit Asks Appeals Court to Dismiss Case; No News from State Bar; More Updates

Last week, VEGAS INC reported the following notable updates in the Righthaven saga:

• The Center for Intercultural Organizing (CIO), an Oregon-based nonprofit, asked the 9th Circuit Court of Appeals to dismiss its case given that Righthaven has been stripped of its copyrights and can no longer participate. The case involves the nonprofit reposting an entire R-J story to its website.
• The State Bar of Nevada continues to work on an inquiry concerning grievances filed by unidentified parties against Righthaven's bluetooth headset sporting CEO Steven Gibson and two other attorneys that formerly worked for his copyright trolling operation. The grievances were opened in January.
• Stevens Media LLC and Righthaven defendant Democratic Underground settled a motion requesting that Stevens Media pay $774,000 in attorney's fees to the Democratic Underground's attorneys. The settlement was disclosed May 25, but its terms have not been revealed.

See: VEGAS INC article in full

Tech Giant Google Weighs in on Righthaven in Amicus Brief; Numerous Case Updates

Google Sides Against Righthaven in Appeal of Copyright Case

The Supreme Court repeatedly has emphasized that the fair use analysis must be a flexible one, leaving courts room to find fair use (or not) depending upon examination of all the relevant facts and circumstances and how they interplay with one another in a particular case,” said Google’s brief.
Google urged the Court to reject “Righthaven’s false assertion that there is ‘almost a per se pronouncement’ in the 9th Circuit precluding the application of the fair use doctrine when an entire work has been copied.”

See: VEGAS INC article in full

Google was not alone in filing a friend of the court brief in the Righthaven case concerning the Center for Intercultural Organizing (CIO), which involved the posting of an entire 33-paragraph R-J story without authorization. The Electronic Frontier Foundation (EFF), the Digital Media Law Project, Public Knowledge and several law professors joined together and filed a friend of the court brief as well.

See: Brief of Amicus Curiae Google (Righthaven v. CIO)
See: Brief of Amicus Curiae EFF et al (Righthaven v. CIO)

Adweek: Maybe Someone Should Sue Him for Posing Such an Unoriginal Question

Judge Takes Dim View of Righthaven

A newspaper publisher’s copyright attack dog got a swat on the nose last week. Righthaven LLC has filed over 250 infringement lawsuits in Nevada, Colorado, and California on behalf of Las Vegas Review-Journal, the Denver Post, and other newspapers.
But a federal judge has declined to indulge its latest episode of copyright trolling, ruling that 100 percent reproduction of an article for a website falls under fair use.

See: Article in full

Social Media Law Newsletter by Morrison & Foerster Examines Righthaven Lawsuits

Socially Aware: The Social Media Law Update - Vol. 2, Issue 2 - April 2011
Socially Aware, a Morrison & Foerster social media newsletter, recently examined Righthaven's copyright lawsuits. In the April 2011 issue (Vol 2, Issue 2) the ninth article, "The Rise (and Possible Demise?) of Copyright Trolls," covers the history of Righthaven's lawsuits up to the most recent news, including the CIO ruling by Judge Mahan and the unveiling of the Strategic Alliance Agreement.

It's a well researched piece, packed with hot links as well. This is a great piece to share with persons new to Righthaven's copyright lawsuits. The newsletter is freely downloadable at the JDSupra website.

Simultaneously, the Intellectual Property Brief newsletter published an article, "Why Comprehensive Copyright Education is Necessary in United States K-12 Education Curriculum." In addition to being scary, the article unwittingly highlights the horrendous complexity of current U.S. copyright law.

Righthaven Loses Second Fair Use Ruling in Case Against Oregon Nonprofit

Righthaven Loses Second Fair Use Ruling Over Copyright Lawsuits
Just over an hour ago, the Las Vegas Sun reported that U.S. District Judge James Mahan ruled that the Oregon nonprofit, Center for Intercultural Organizing (CIO), did not infringe on copyrights after it posted an entire Las Vegas Review-Journal story on its website.

An Oregon nonprofit did not infringe on copyrights when it posted without authorization an entire Las Vegas Review-Journal story on its website, a judge ruled Friday.
--snip--
"Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit," Mahan said.
This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.

See: Article in full

[Mahan added: "I realize this is going to be appealed. I tell litigators 'that's why God created San Francisco'" -- home of the federal appeals court.]

Righthaven Challenges Lawsuits; Updates on Multiple Cases

The Las Vegas Sun provides updates on a number of cases that Righthaven is challenging, including: Bill Hyatt (and the Media Bloggers Association's attempted intervention), the Democratic Underground, message-board poster Wayne Hoehn, blogger Dana Eiser, pro se defendant Thomas Neveu and Christopher Malley. The copyright trolling group also faces a hearing this week concerning the Center for Intercultural Organizing. In November, U.S. District Judge James Mahan ordered Righthaven to show cause why its lawsuit against the center shouldn't be dismissed on fair use grounds.

U.S. District Judge Continues to Question Righthaven's Claim of "Harm"

Judge Questions Whether Nonprofit’s Web Posting Harmed R-J
U.S. District Judge James Mahan did not rule on the fair use issue Tuesday, but he continued to pound away at Righthaven's claim of "harm" after the Center for Intercultural Organizing (CIO) posted an entire R-J article without authorization. Key quotes from the recent Las Vegas Sun article include:

• "Fair use seems like an overriding issue," Mahan said. "These cases typically get settled and the fair use doctrine never gets properly raised. I think it needs to be addressed."
• "You really think the defendants are competing with the Review-Journal and making a ton of dough on this?" Mahan asked.
• A person reading the story on the center's website "may have never heard of the Review-Journal before reading that article," the judge said. "It's a totally different market," he said.
• But with Righthaven now owning a copyright to the story, Mahan said: "There is no market for the copyrighted work. You are not publishing it. You are not operating a newspaper. Righthaven only sues people, apparently," Mahan said.

Read: Article in full

Righthaven Disputes Fair Use Defense Brought in Recent Copyright Case

Righthaven Disputes Fair Use Defense in Copyright Case
Righthaven attorneys argued against the Center for Intercultural Organizing (CIO) fair use defense this week (See: related post). Some key points include:

• "The defendants’ implied license argument is clearly procedurally improper: the assertion of an implied license theory is entirely non-responsive to the court’s order to show cause concerning fair use. Additionally, the defendants’ implied license theory is so far-fetched..."
• "The defendants are conveniently ignoring the fact that the Las Vegas Review-Journal (LVRJ) website only permits users to save a hyperlink leading to the articles published on the LVRJ website, or to e-mail a hyperlink leading to the LVRJ website..."
• "A defendant’s nonprofit status or educational motive does not somehow provide a blanket exemption from liability for infringement."
• The infringement at issue isn’t protected by the fair use doctrine because fair use in part requires the use to be "transformative."

Read: Article in full | Picked up by the Associated Press

TechDirt.com: Copying Full Article Does Not Always Preclude Fair Use

Law Professor Explains How Even When A Site Copies An Entire Article, It May Still Be Fair Use

Berkeley law professor Jason Schultz has filed an excellent amicus brief in one of the many Righthaven lawsuits, pointing out that using an entire article does not preclude fair use (pdf), and then going on to explain why the use of an entire article in this particular case (which Righthaven brought against the Center for Intercultural Organizing) was almost certainly fair use...

See: Article in full | View: Amicus Brief (Professor Jason Schultz)

Implied License Argument Heating Up: "Friend of the Court" Brief Filed by Former EFF Member

Judge Focuses on Question of ‘Fair Use’ in Copyright Lawsuit

“The article has been removed from its usual habitat. It is not owned by a newspaper, but has been assigned to a company that does not publish news stories, but uses them exclusively to file infringement lawsuits. That practice has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained in them and does nothing to advance the Copyright Act’s purpose of promoting artistic creation. When a copyrighted work is simply an instrumentality for litigation, it is properly granted the lowest possible amount of protection against a fair-use claim,” the brief said.

Read: Article in full