Righthaven offers new argument in bid to revive lawsuit

Copyright lawsuit filer Righthaven LLC of Las Vegas is trotting out a new argument as it seeks to revive one of its lawsuits that was dismissed.

The argument goes like this: Bloggers and message-board posters who misappropriate newspaper content can “profit” from doing so, even if they realize no direct financial gain from their activities.

They can profit without paying any price, Righthaven says, by lifting stories from newspaper websites to enhance their own standing in the online world.

Righthaven offered that theory this week in an appeal of a decision by a federal judge in Las Vegas dismissing one of Righthaven’s lawsuits on fair use and other grounds.

Since March 2010, Righthaven has filed 275 federal lawsuits claiming material from the Las Vegas Review-Journal and the Denver Post has been infringed upon. The suits are based on copyrights Righthaven obtained from those newspapers.

Four of the lawsuits have resulted in fair use defeats for Righthaven, most recently when the Review-Journal chose not to fight a fair use determination in one of Righthaven’s suits against the Democratic Underground.

This week’s appeal, in which Righthaven is offering the “reputational benefit” argument, is in its lawsuit against Kentucky message board poster Wayne Hoehn.

He was sued in January by Righthaven after posting on a sports betting website — without authorization — an entire column about public employee pensions by Sherman Frederick, a columnist for and former publisher of the Las Vegas Review-Journal.

U.S. District Judge Philip Pro dismissed the lawsuit in June without it ever going to a trial or to the fact-finding discovery phase, ruling Righthaven lacked standing to sue Hoehn.

Pro is among six federal judges in Nevada and Colorado who have ruled Righthaven lacked standing to sue because — despite Righthaven’s claims of ownership — the newspapers maintained control of the material at issue. Righthaven is appealing several of those standing dismissals, including the one in the Hoehn case.

Just as importantly in the Hoehn case, Pro found Hoehn was protected by the fair use doctrine of copyright law in using the R-J column, in part because Pro felt the column was mainly an informational piece as opposed to being mostly creative. This caused Frederick to complain publicly that Pro had botched the ruling.

As part of his fair use analysis, Pro also ruled that Hoehn’s use of the R-J column to foster a political discussion was noncommercial, as Hoehn had no hope of profiting from the post; and that Righthaven had not shown any harm by Hoehn’s post to the market for the copyright at issue.

Righthaven, in its opening brief in the Hoehn case filed with the 9th U.S. Circuit Court of Appeals this week, attacked all of these lines of reasoning.

Accusing Hoehn of “cyberspace Xerox unauthorized duplication efforts,” Righthaven argued Pro had wrongly found the defendant “did not and could not profit from posting” the column.

“This conclusion erroneously equates commercial use with monetary gain,” Righthaven said in its brief. “Reputational benefits conferred as a result of displaying unauthorized content may constitute a form of commercial use or profit under a fair use analysis.”

Righthaven argued Pro “failed to appreciate that the defendant may have profited by receiving reputational benefits in the online community in which he disseminated the unauthorized version of the work.”

Noting that in its lawsuit it had alleged Hoehn had contributed some 18,000 posts to the website at issue, Righthaven argued, “These circumstances certainly support an inference that the defendant is looked upon by other users and visitors of the website as an important content contributor, which would also support a finding that he enjoys a reputational benefit from such conduct whether his content contributions are done with or without authorization.”

Righthaven also argued in its brief that Pro had refused to allow Righthaven to conduct discovery on the market harm issue, though Pro in his ruling found that Righthaven had failed to file an affidavit showing why it needed to conduct discovery and about the types of facts it hoped to find.

On the issue of whether the column was mainly informational as opposed to being mostly creative, Righthaven argued this is an issue that shouldn’t have been decided on a summary judgment basis and instead should have been decided with a trial.

Pro “engaged in a literal parsing of fact versus creative content contained in the work, which should be performed by the trier of fact,” Righthaven argued.

Hoehn’s attorneys have not yet filed their brief in the appeal, but they’re sure to dispute each of Righthaven’s claims as they say Righthaven’s suit against Hoehn was an attack on his 1st Amendment right to free speech.

Righthaven, its defendants and their attorneys, in the meantime, continued to wait Wednesday for a ruling on whether a receiver should be appointed to take over Righthaven and auction its copyrights because Righthaven hasn’t paid for Hoehn’s attorney’s fees as ordered to do so by Pro.

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