Righthaven Archives
A nonprofit group is complaining the Las Vegas Review-Journal invites readers to share its stories online — and then has Righthaven LLC "ambush" them with copyright infringement lawsuits.
These arguments were made Friday to the 9th U.S. Circuit Court of Appeals in San Francisco, which is considering whether a federal judge properly dismissed a Righthaven lawsuit against the nonprofit.
The appeal is one of seven Righthaven filed last year with two appeals courts after federal district court judges in Nevada and Colorado dismissed Righthaven lawsuits.
Righthaven is the copyright enforcement partner of the Review-Journal and formerly of the Denver Post. After filing 275 no-warning lawsuits alleging online infringements of material from those newspapers, the company lately has been in financial distress because of adverse court rulings.
On Friday, its website domain name was auctioned while creditors continued with their efforts to seize Righthaven assets to cover judgments won by defendants who defeated Righthaven in court.
In some of the adverse court rulings, judges said Righthaven lacked standing to sue because — despite its claims — it didn’t really own the material it was suing over.
That’s because its lawsuit partners, the R-J and the Post, maintained control of the material at issue in the lawsuits.
In other cases, judges found defendants were protected by the fair-use doctrine of copyright law in using Review-Journal material without authorization.
A brief submitted to the 9th Circuit on Friday focused on the fair use issue.
The defendant, the Center for Intercultural Organizing (CIO) of Portland, Ore., an immigrants’ rights group, was cleared of copyright infringement allegations in March by U.S. District Judge James Mahan in Las Vegas.
Mahan found the CIO’s post of an entire 33-paragraph R-J story about immigrants and their relationship with Las Vegas police was a fair use partly because it was "informative" as opposed to being "creative."
However, the key factor in his fair-use ruling was the fact that the plaintiff in the lawsuit was Righthaven, as opposed to the R-J.
With "harm to the market" being a key test in fair-use defenses, Mahan found there can be no such harm to Righthaven since it uses copyrights strictly for lawsuits – meaning there is no market for its copyrighted material.
"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 in his dismissal ruling.
Attorneys for the Center for Intercultural Organizing, in a brief filed with the appeals court Friday, reiterated Mahan’s reasoning and also complained about the conduct of both the Review-Journal and Righthaven.
"The Review-Journal allows its readers to disseminate its articles to third parties. Rather than institute measures to ensure third parties do not copy and paste articles onto other websites, the Review-Journal seemingly invites third parties do to just that," the CIO’s brief says. "Readers can share articles by selecting an icon that is simply labeled 'email this' at the top of each web page. Readers may also save copies of articles onto their own personal computers.
"These options lull the readers into a false sense of security. On one hand, the Review-Journal freely encourages its readers to disseminate its articles, while Righthaven lies in wait to ambush the innocent users with lawsuits," the filing said.
The CIO is represented in the appeal by Las Vegas attorneys James Olson and Michael Stoberski of the law firm Olson, Cannon, Gormley & Desruisseaux.
Righthaven earlier told the appeals court that Mahan erred by ruling before Righthaven had a chance to investigate how the CIO was using the story to raise money and that his finding the story lacked creative effort was erroneous.
It’s unknown when the appeals court will issue a ruling on this and other pending Righthaven appeals.
The R-J has previously been similarly accused of entrapment and one of the Nevada federal judges has found there may be merit in arguing the R-J provided an "implied license" to copy its material.
A Righthaven defendant’s pending lawsuit against Righthaven and the Denver Post similarly accuses the Post of encouraging readers to use its material so that Righthaven can later sue them.
It’s unknown whether the appeals court will buy any of these arguments.
The Denver Post – which didn’t renew its Righthaven contract – hasn’t responded to the suit accusing it of setting up readers for Righthaven lawsuits.
Stephens Media LLC, owner of the Review-Journal, has said the Righthaven suits were necessary to deal with a "parasitic" business model in which newspaper content is regularly stolen by infringers.
Stephens Media, like other newspaper companies, also says its online sharing tools don't give users the authority to post entire stories elsewhere without authorization. Rather, Stephens Media says users can post only the headline, the first paragraph and a link to the rest of the story, column or editorial.