The Las Vegas Review-Journal won't object to a court ruling finding in favor of a Righthaven LLC copyright lawsuit defendant.
A website sued over the posting of part of an R-J story without authorization was actually not involved in copyright infringement and in fact was protected by the fair use doctrine of copyright law, the ruling says.
In what turned out to be a disastrous lawsuit for Righthaven, the R-J’s copyright lawsuit partner, Righthaven CEO Steven Gibson and two other Righthaven attorneys sued the Democratic Underground in August 2010 on behalf of Righthaven.
The suit alleged copyright infringement over a posting by a Democratic Underground website user of the first four paragraphs of a 34-paragraph R-J story on then-U.S. Senate candidate Sharron Angle.
The post credited the information to the news organization and linked to the R-J. Attorneys for the Democratic Underground suggested the group had actually done the Las Vegas newspaper's website a favor by directing traffic to it — only to be thanked with a no-warning lawsuit demanding $75,000 in damages.
After it was sued, the Democratic Underground, represented by attorneys at and affiliated with the Electronic Frontier Foundation, a digital rights group based in San Francisco, retaliated with a counterclaim against Righthaven and Stephens Media LLC, owner of the R-J.
The counterclaim said the post was protected by the fair use doctrine of copyright law and that the legal action was an abusive lawsuit based on a sham copyright assignment from Stephens Media to Righthaven.
The case grew ugly for Righthaven when U.S. District Judge Roger Hunt dismissed the lawsuit, saying Righthaven lacked standing to sue.
He also fined Righthaven $5,000 for failing to disclose Stephens Media was an interested party in the suit, as it shares lawsuit revenue with Righthaven.
The counterclaim against Stephens Media continued, and attorneys for Stephens Media filed papers Thursday in federal court in Las Vegas consenting to entry of an order finding in favor of the Democratic Underground on the fair use issue.
Their decision to do so wasn't surprising as — based on Righthaven-created case law — Hunt likely would have found in favor of the Democratic Underground on the fair use issue if the case had gone to trial.
Righthaven case law involving other judges has found that much larger, 100 percent postings of R-J material in other caseswere protected by fair use.
“The court finds that the undisputed facts demonstrate no volitional act by counterclaimant Democratic Underground LLC or (DU official) David Allen, as required to sustain a claim for direct copyright infringement. The court also finds that the undisputed facts demonstrate that the use in question was fair use as a matter of law,” says the proposed order, which Hunt is likely to sign.
“Stephens Media does not contest the substantive arguments presented by Democratic Underground on the issues of volitional act and fair use as applied to the material facts of this case,” said the Stephens Media filing by its attorneys at the Las Vegas law firm Campbell & Williams. “Stephens Media consents to the entry of the proposed order.”
“This concession comes after more than a year of needless litigation. Stephens Media never should have authorized Righthaven to file this suit in the first place, and should never have wasted our client’s and the court’s time with its attempts to keep Righthaven’s frivolous claim alive for the last year," EFF attorney Kurt Opsahl said Friday in reacting to the Stephens Media filing.
“This is a hard fought and important victory for free speech rights on the Internet,” added Laurence Pulgram, a partner at the law firm Fenwick & West LLP in San Francisco who worked with the EFF as the lead attorney on the case. “Unless we respond to such efforts to intimidate, we’ll end up with an Internet that is far less fertile for the cultivation and discussion of the important issues that affect us all.”
Stephens Media, before Thursday's concession, had argued the Righthaven lawsuits were needed to combat a parasitic business model in which newspaper content is regularly misappropriated by infringers.
Righthaven since March 2010 has filed 275 infringement lawsuits over material from the R-J and the Denver Post but lately has seen its litigation campaign stalled by rulings against it on fair use and that it lacked standing to sue.
On the standing issue, six judges have ruled Righthaven — despite its ownership claims — didn't actually control the copyrights it obtained from the newspapers for lawsuit purposes.
Righthaven, however, is appealing several lawsuit dismissals and is hoping one of the judges handling its Nevada cases revives its right to sue.