Righthaven Finally Bites the Dust; 9th Circuit Court of Appeals Confirms No Standing to Sue

In the copyright infringement lawsuits involving defendants Wayne Hoehn and Thomas DiBiase, the two cases were combined on appeal, the Court ruled on May 9, 2013 (read full opinion):

OPINION (CLIFTON, Circuit Judge)
Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

The Court also vacated the order granting the motion for summary judgment on fair use grounds.

We understand why the district court reached the fair use issue. By providing an alternative basis for decision, the court sought to deal with this case in a more efficient manner. If we disagreed with the district court and concluded that Righthaven had standing to bring this copyright infringement action, we could have proceeded directly to the next issue, fair use, without requiring a remand and a further appeal.
Nonetheless, because we agree that Righthaven did not have standing, it is not appropriate for us to go further or for the district court’s alternative ruling to stand. We therefore vacate the portion of the district court’s order that analyzed the merits of the fair use defense and granted the motion for summary judgment.

See: Ars Technica article in full
See:  Ninth Circuit Vacates Fair Use Finding in Righthaven Case

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

Another Righthaven Appeals Case Dismissed, Another Fair Use Ruling Stands

Fourth Righthaven Copyright Lawsuit Appeal Dismissed

Copyright lawsuit filer Righthaven LLC of Las Vegas saw another one of its appeals dismissed Wednesday after Righthaven apparently abandoned the case. A deputy clerk at the Ninth U.S. Circuit Court of Appeals in San Francisco dismissed Righthaven’s appeal of a 2010 ruling finding Las Vegas real estate agent Michael J. Nelson was protected by fair use in posting part of a Las Vegas Review-Journal story on his commercial website without first gaining permission from the R-J to do so.

The caveat with this fair use ruling is that U.S. District Judge Larry Hicks acknowledged that Nelson used the R-J story for commercial purposes, which often counts against fair use, but found that the posted portion was "factual" (not creative) and that Nelson's posting of the first eight sentences of the 30-sentence article was “likely to have little to no effect on the market for the copyrighted news article.” The is the fourth appeals case that has been dismissed after being abandoned by Righthaven.

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)

Victory for Fair Use; Stephens Media Admits Defendant's Use of Material was Fair Use

Righthaven Case Ends in Victory for Fair Use

San Francisco - In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC.
The case began when the online political forum Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers -- was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper's website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.

See: Electronic Frontier Foundation's post in full
See: Democratic Underground's motion for summary judgment
See: Stephens Media's consent to the motion

Related articles:
Judge Rules Righthaven Does Not Have Standing to Sue; Threatens Sanctions
Righthaven’s Operating Agreement Revealed by Nevada District Court
Defense: Democratic Underground Fights Back with Help from EFF

Judge Hunt Dismisses Another Righthaven Lawsuit Due to Lack of Standing

Judge Tosses Righthaven Suit Against Former Prosecutor

Another bitterly-contested Righthaven copyright infringement lawsuit was dismissed in Las Vegas today – but this time there was no determination about fair use.
Roger Hunt, chief U.S. District Court judge for Nevada, today dismissed the Righthaven LLC lawsuit alleging copyright infringement against former federal prosecutor Thomas DiBiase.
Just as he ruled last week in the Democratic Underground case, Hunt today found Righthaven lacked standing to sue DiBiase.

See: Article in full | View: Dismissal Ruling by Judge Hunt

Hunt also noted that Judge Philip Pro found this week that Righthaven still lacks standing to sue after it's May 9 "clarification" of the Strategic Alliance Agreement.

Related articles:
06/14/11: Judge Rules Righthaven Does Not Have Standing to Sue; Threatens Sanctions
04/19/11: EFF Releases Important Commentary About Friday's Crucial Discoveries
10/20/10: EFF Files Counterclaim on Behalf of Site that "Benefits the Public Interest"

Flickr Royally 'Effs Up,' Removes Protected Satire Image by Brian Hill

A Las Vegas online travel website recently complained to Flickr that a satire image created by Brian Hill infringed upon their copyrights. The image depicts the interior of a casino as the setting of Wall Street. Hill told VEGAS INC Sunday, "I feel like Wall Street has become like a casino because people lose and win money there, so when people lose money they may lose their family home. That is why I chose a casino setting for the satire. I was never intending to make any casino look bad. If that casino got the wrong idea about my political satire, that was never my intent."

See: Related VEGAS INC article  |  See: Parody, satire and fair use

Related articles:
Lightening Bolts Fired in Brian Hill's Reply; Alleged Fabricated Press Release...
Righthaven Files Response to Brian Hill's Motion for Legal Fees, Reveals...
Brian Hill and other Righthaven Victims Featured in the New York Times...

Many Denver Residents Remain 'In the Dark' About the Post's Involvement with Righthaven

Unlike the situation with the Las Vegas Review-Journal, whose competitor, the Las Vegas Sun, has been keeping local residents aware of the Review-Journal's role in Righthaven's "sue without warning" lawsuits, the situation in Denver is quite different. The Denver Post has no local large competitor (it shut down in 2009). So if one only reads the Post and neglects free area newspapers, like Westword or the Denver Daily News, one might not know the role the Post is playing in these lawsuits.

The Denver Post barely covers Righthaven copyright lawsuits. The Las Vegas Review-Journal was similarly tight-lipped.

I recently emailed a Denver friend, who practices law in a different area than Intellectual Property. I asked him to, "Keep your ears open about the class-action suit being brought by Brownstein Hyatt Farber Schreck LLP." He replied back, "Will do....but since the Denver Post won't cover the story, and the main news radio station, KOA 850 AM, is a 'partner' with the Denver Post, they probably won't report on the story either...so I really wonder if the local media will talk about it at all!"

I then searched for the Denver Post's mission statement, but came up empty handed. When searching "About" and "Denver Post," I found their Media Kit, which lacks a mission statement too. This contrasts greatly to what I found after switching gears to the Las Vegas Sun's website. At the bottom of each page is a link: Learn more about the LasVegasSun.com. "Fighting for the little guy" is the first part of the Sun's mission statement. Having not seen this page before, I was moved to tears.

Lights Out for Denverites

The Post's backing of Righthaven lawsuits in conjunction with an absent local competing newspaper is deeply disconcerting. Too many Denverites do not know about the frame-up jobs on defendants Brian Hill, Dana Eiser, Denise Nicols and many others, whose use of the Post's material clearly falls under Fair Use. If I were a Denver Post employee, I would be ashamed, and perhaps some of them are. Then again, we are talking about a company that is "missionless," by their own editorial choice.

"Righthaven" search results for the Denver Post
"Righthaven" search results for the Review-Journal

Steve Green of the Las Vegas Sun: Lawsuits Reduce Protections for Newspapers

Righthaven Lawsuits Backfire, Reduce Protections for Newspapers

U.S. District Court for Nevada Judge James Mahan, in striking the latest fair use blow against Righthaven on Friday, announced a decision that to me would have been unthinkable one year ago: A nonprofit was protected by the fair use doctrine in posting an entire Review-Journal story without authorization.
--snip--
If this decision is adopted by other judges and upheld on appeal, it would mean any nonprofit could post without authorization entire stories from the Las Vegas Sun or any other newspaper -- and presumably television and radio reports as well...

See: Article in full

[The New York Times recently announced its paid subscription model. Subscription revenue instead of "suing their audience" revenue like the Denver Post and Review-Journal have undertaken.]

Righthaven Appeals Fair Use Ruling to 9th Circuit Court (Nelson-Realty One)

Righthaven Appealing Fair-Use Ruling in Copyright Infringement Case

This ruling caused Righthaven to alter its litigation strategy to limit its lawsuits to entire stories, photos and graphics — rather than partial stories — that were reproduced without authorization.
After Nelson’s motion for dismissal was granted, attorneys for codefendant Realty One Group asked the court to set aside a default that had been entered against it, and this was granted without opposition by Righthaven.
The court also dropped the lawsuit against a third defendant, David Tina...

See: Article in full

Related articles:
10/20/10: First Defendant to Win Dismissal: Michael Nelson, Real Estate Agent

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)

MediaPost Says, "Three's a Trend," After Judge James Mahan's Recent Direction

Three's A Trend: Another Judge Challenges Righthaven's Claims

First, U.S. District Judge Gloria Navarro in Nevada ruled that the Las Vegas Review-Journal might have granted an implied license to blogger Jan Klerks, who allegedly reposted a Review-Journal article on his noncommercial site about urban development, www.skyscrapercity.com. Navarro also ruled that Klerks might have made fair use of the article, despite the allegation that the article was reposted in its entirety.
Next, Judge Larry Hicks in Nevada dismissed Righthaven's lawsuit against realtor-blogger Michael Nelson, ruling that posting eight sentences of a 30-sentence Review-Journal article was a fair use.
Now a third federal judge in Nevada, James Mahan, has directed Righthaven to prove that a nonprofit didn't make fair use of an article it reposted -- even though the defendant, the Portland, Ore.-based Center for Intercultural Organizing, didn't argue fair use as a defense.

See: Article in full

Like TechDirt.com, New York-based MediaPost.com has been reporting on copyright troller Righthaven as new defendants are sued and key rulings are issued. (Kudos Wendy Davis!)

Judge Raises Fair Use Issue Unprompted by Defendant, Center for Intercultural Organizing

Judge to Righthaven: Show Why Lawsuit Shouldn’t Be Dismissed

In the meantime, U.S. District Judge James Mahan has ordered Righthaven to show cause why another of its lawsuits shouldn't be dismissed on fair use grounds.
That case involves the Center for Intercultural Organizing of Portland, Ore., which was sued by Righthaven in August after an entire 33-paragraph Review-Journal story about Las Vegas immigrants from June 28 was posted on the center's website, crediting the Review-Journal.
--snip--
Mahan didn't elaborate in his show cause order on the fair use issue, and Righthaven hasn't yet responded to the order.
The order came as a surprise as it was Mahan, not the defendant, who directly raised the fair use issue.

See: Article in full

Wired Reports on Recent EFF Counterclaim Involving Thomas DiBiase (nobodycases.com)

EFF Defends Former Prosecutor from Righthaven Copyright Suit

“Righthaven’s efforts to restrict what information is available to help police, prosecutors, and grieving families catch murderers is not only unlawful and an affront to the First Amendment, it’s just shameful,” DiBiase said in a statement Monday.
The EFF, in a counter suit lodged late Friday, maintains that the reposting of the article is a fair use (.pdf) of the material, because the site is not commercial and is meant to be a clearinghouse for “no body” crimes and investigations.

Read: Article in full

Shameful and unAmerican.

First Defendant to Win Dismissal: Michael Nelson, Real Estate Agent

Righthaven Defendant Wins First Lawsuit Dismissal Motion

The "housing sale odds" story that Righthaven obtained a copyright for and sued over consisted of 30 sentences, but Nelson reproduced "only" the first eight sentences, Hicks wrote in his ruling that was filed Tuesday.
"The court finds that this use weighs in favor of a fair use of the copyrighted material," Hicks wrote in his ruling, citing case law stating "copying only as much as necessary in a greater work (story) to provide relevant factual information weighs in favor of fair use."
As to whether the online posting affected the potential market for the Review-Journal story, Hicks wrote: "Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article...

See: Article in full | View: Dismissal ruling

The Bureau of National Affairs (BNA), who recently published an article critical of Righthaven's practices, is also noted in the article.

Defense: Field & Stream Fires Back (Kudos to Field & Stream!)

Sharron Angle Signals Interest in Settling Copyright Lawsuit
Attorneys for Field & Stream (Bonnier Corporation):

• "The plaintiff's purported assignor (Review-Journal owner Stephens Media LLC) granted an implied license to copy and share the work (story) by posting the work on its website and by providing tools for electronically sharing the work."
• "The posting of the work by Clay Cooper was fair use. The work was attributed to the author and publisher."
• "The plaintiff's claim is barred by its unclean hands, in that the plaintiff is engaged in barratry."
• "The plaintiff's claim is barred by its unclean hands, because the alleged infringement, if any, resulted from the plaintiff's purported assignor's use and promotion of electronic tools for copying and sharing the work."
• "The plaintiff's claim is barred by copyright misuse."

See: Article in full

Bonnier is represented by Michael Crosbie of Shutts & Bowen LLP and Byrne of Snell & Wilmer.