Judge grants summary judgment in favor of Righthaven defendant
22 April 2011
VEGAS INC coverage
A judge on Friday signed an order finding an Oregon nonprofit did not infringe on copyrights when it posted without authorization an entire story from the Las Vegas Review-Journal.
The order granting summary judgment in favor of the Center For Intercultural Organizing (CIO) of Portland, Ore., was expected. U.S. District Judge James Mahan said during a March 18 hearing he planned to dismiss a copyright infringement lawsuit filed against the CIO on fair-use grounds.
The lawsuit was filed by Righthaven LLC, the Las Vegas company that has teamed up with the Review-Journal and the Denver Post to file 265 copyright infringement lawsuits since March 2010.
The filing of Friday’s written ruling against Righthaven will advance the case toward an appeal. First, attorneys for the CIO need to file a motion for a judgment that will close the case.
Once it’s appealed, the CIO case is expected to be combined with another Righthaven appeal of a fair-use ruling against it in a case involving a Las Vegas real estate agent.
Mahan, in his order Friday, made it clear that Righthaven suing the Center for Intercultural Organizing — as opposed to the Review-Journal itself filing suit — factored significantly into his decision.
“CIO’s use of the article is transformative. Although the former owner, the Las Vegas Review-Journal, used the article for news-reporting, the court focuses on the current copyright owner’s use, which, at this juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the article to educate the public is transformative and does not constitute a substitution of the plaintiff’s use,” Mahan wrote.
The nonprofit status of the CIO helped its cause, as Mahan noted it “did not sell, license, or publish the work.”
In one of his more controversial findings, Mahan ruled the story was mainly “informational” as opposed to being “creative,” with creative works receiving greater copyright protection.
“Where the disputed use can be characterized as news-reporting, this factor weighs heavily in favor of a finding of fair use,” Mahan wrote in his order, citing earlier case law.
This portion of his ruling has raised eyebrows because the Review-Journal story at issue wasn’t a simple press release rewrite or a routine story. It totaled 33 paragraphs and involved planning, research, multiple interviews and probably a good amount of work in the writing and editing process. The story covered the relationship between Las Vegas police and minorities.
Mahan also found the CIO’s posting of the story didn’t harm the market for the story, in part because Righthaven had failed to even allege there was a market for the copyright.
“Because Righthaven cannot claim the Las Vegas Review-Journal’s market as its own and is not operating as a traditional newspaper, Righthaven has failed to show that there has been any harm to the value of the copyright,” he wrote.
Mahan wrote that, overall, he was looking at fair use in the case in relation to the purposes of the Copyright Act to “promote the progress of science and useful arts and to serve the welfare of the public.”
“The court finds that the defendant’s use of the copyrighted article in this case constitutes fair use as a matter of law. The article has been removed from its original context; it is no longer owned by a newspaper; and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits. Plaintiff’s litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation,” Mahan wrote.
The two fair-use losses are just some of the legal challenges Righthaven faces as its cases continue to advance to the point where they’re receiving additional judicial scrutiny.
Another judge in Las Vegas unsealed Righthaven’s lawsuit contract with the owner of the Review-Journal, opening up a new line of challenges to Righthaven’s standing to sue; while the judge handling Righthaven’s Colorado lawsuits has been critical of its litigation tactics that seek to compel defendants to settle rather than fight back.
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