Book, record industries attack Righthaven fair use ruling

The U.S. book and music industries, as expected, on Monday asked the 9th U.S. Circuit Court of Appeals in San Francisco for permission to participate in one of the Righthaven copyright lawsuit appeals.

In a request to file an "amici curiae" or friend of the court brief, their attorneys said the permission of the court was needed because attorneys for the defendant in the appeal, Wayne Hoehn, had refused to agree to their participation.

Las Vegas-based Righthaven, however, consented to the participation of the Association of American Publishers and the Recording Industry Association of America.

Righthaven’s newspaper copyright infringement litigation efforts involving 275 lawsuits filed since March 2010 are stalled by courtroom defeats — but the book and music industries aren’t participating in the Hoehn appeal in hopes of reviving the suits.

That’s because in the Hoehn appeal, those industries are focusing on the narrow fair use issue — not on the main ruling showing Righthaven lacked standing to sue Hoehn.

If Righthaven can’t somehow revive its standing to sue over newspaper content copyright violations, it won’t be filing new lawsuits and there won’t be any more fair use controversies to be resolved.

Nevertheless, the book and music industries appear to be alarmed that Hoehn’s unauthorized posting on a sports betting website of 100 percent of a Las Vegas Review-Journal column received the fair use stamp of approval — something that could haunt them in their own copyright fights if the Hoehn ruling stands.

"Because strong and effective copyright laws enable publishers and recording companies to protect their investments in creative works and the marketing and distribution thereof, amici have an interest in ensuring that courts apply copyright laws consistently and carefully," their proposed brief said. "As both copyright owners and users of copyrighted materials, amici’s members also have an interest in promoting a balanced and pragmatic approach to fair use as an important affirmative defense to copyright infringement."

Saying the case involves "important questions related to the U.S. Copyright Act and the U.S. Constitution," attorneys Steven Metalitz and J. Matthew Williams argued in their proposed brief that U.S. District Judge Philip Pro in Las Vegas was wrong to grant Hoehn a fair use victory over Righthaven.

That’s because in the same ruling, Pro found Righthaven lacked standing to sue and that should have ended the case, the attorneys with the firm Mitchell Silberberg & Knupp LLP argued in their request.

"The court’s fair use analysis was inescapably flawed because the parties before the court, lacking any authority to exploit the copyrighted work, were in no position to present relevant arguments on the critical issue of the impact of the defendant’s use upon such exploitation," their filing said.

The attorneys wrote that with Righthaven lacking standing to sue Hoehn, it had "no right to market or exploit the work in any way" and "it was incapable of making any showing of any harm to actual or potential markets for the work."

The "work" in this case was the complete R-J column Hoehn had posted on a sports betting website without authorization.

And "market harm" has been a big problem for Righthaven in fair use decisions against the Las Vegas company, as judges have ruled there is no market for Righthaven-owned copyrights since Righthaven uses them only for lawsuit purposes.

Upholding Pro’s ruling sets "a disturbing precedent that fair use controversies may be adjudicated, not between users and copyright owners, but between users and strangers to the work, and that the courts may safely rely on the latter to marshal the evidence about markets in which they cannot participate and have no incentive to understand," the attorneys wrote.

Despite these arguments, Righthaven insists that it can show market harm to its copyright by Hoehn. For instance, Righthaven last week said Hoehn and other users of copyrighted material can harm copyright owners as the users seek "reputational benefits."

And attorneys for Hoehn are likely to argue that Pro was correct in ruling on both Righthaven’s standing and Hoehn’s fair use of the R-J column.

It may be noted that in the disastrous Righthaven lawsuit against the Democratic Underground, Righthaven was removed from the case due to its lack of standing.

In that case and others, six judges have ruled Righthaven lacked standing to sue over R-J and Denver Post material because the newspapers maintained control of the material Righthaven was suing over.

But in the Democratic Underground’s counterclaim against R-J owner Stephens Media LLC, the Democratic Underground is insisting on a fair use declaration — something Stephens Media has chosen not to fight.

While the Democratic Underground case involved just a small portion of an R-J story posted without authorization vs. Hoehn’s 100 percent use of an R-J piece, the Democratic Underground case shows that standing and fair use issues can be resolved in the same lawsuit.

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