Google sides against Righthaven in appeal of copyright case
13 January 2012
Internet giant Google Inc. sided against copyright company Righthaven LLC on Friday in one of its appeals.
And in what turned out to be an unlucky Friday the 13th for Righthaven, judges rejected two more of its no-warning copyright infringement lawsuits over newspaper content.
Las Vegas-based Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and formerly of the Denver Post.
Since March 2010, it has filed 275 no-warning lawsuits claiming websites and Internet users had posted stories, photos and other material from the newspapers without authorization and therefore infringed on copyrights.
Righthaven is now suffering through hard times after judges ruled it lacked standing to sue or that defendants were protected by fair use. After judges awarded defendants $216,335 in legal fees, a receiver started auctioning off Righthaven assets to cover their judgments. The State Bar of Nevada, in the meantime, is probing the conduct of three current or former Righthaven attorneys.
Righthaven is appealing several of the dismissals of its lawsuits, and an appeal in the 9th U.S. Circuit Court of Appeals in San Francisco is where Google appeared Friday with a friend of the court brief.
The case involves a Righthaven lawsuit against the Center for Intercultural Organizing (CIO) in Portland, Ore., which had posted an entire 33-paragraph R-J story without authorization.
Federal Judge James Mahan in Las Vegas threw out Righthaven’s suit against the CIO in April, finding the group was protected by fair use.
His reasoning was that the CIO is a nonprofit that couldn’t have harmed Righthaven or the market for the story since Righthaven uses copyrights only for lawsuits — meaning there is no market. Mahan also found news reporting was subject to less copyright protection than more creative works.
Righthaven, in asking the 9th Circuit to overturn Mahan, argued that in the 9th Circuit, there’s “almost a per se pronouncement against a finding of fair uses in cases of 100 percent unauthorized replication.”
Attorneys for Google, in their brief Friday, argued that’s not true and provided a long list of court cases finding fair use, even when 100 percent of a work was copied without authorization — including in search engine search results.
For instance, the 9th Circuit in 1986 cleared the Moral Majority of copyright infringement allegations after it copied and distributed a Hustler magazine parody of Rev. Jerry Falwell for use in raising money for Falwell’s legal fight against Hustler.
“The Supreme Court repeatedly has emphasized that the fair use analysis must be a flexible one, leaving courts room to find fair use (or not) depending upon examination of all the relevant facts and circumstances and how they interplay with one another in a particular case,” said Google’s brief.
Google urged the Court to reject “Righthaven’s false assertion that there is ‘almost a per se pronouncement’ in the 9th Circuit precluding the application of the fair use doctrine when an entire work has been copied.”
“That simply is not the law, nor should it be. Indeed, adoption of any such per se rule would wreak havoc on businesses like Google, whose ability to offer innovative and useful services to the public depends on the adaptability of the fair use doctrine,” Google’s filing said.
Google is represented in the case by copyright attorneys including Andrew Bridges, Jennifer Kelly and Laurence Pulgram of the San Francisco law firm Fenwick & West LLP.
Pulgram has been active in other high-profile Righthaven cases, including its suit against the Democratic Underground, in which Righthaven was found to lack standing to sue because the Review-Journal maintained control of the material Righthaven claimed to own.
That was also the case where Righthaven was fined for failing to disclose the Review-Journal shares in its lawsuit revenue — and in which a judge said he suspected Righthaven had made misrepresentations to the court.
Also filing a friend of the court brief in the CIO case was a group that’s been fighting Righthaven, the Electronic Frontier Foundation (EFF) of San Francisco.
It was joined by the Digital Media Law Project, which is affiliated with Harvard University’s Berkman Center for Internet & Society, a group called Public Knowledge and several professors who have been critical of Righthaven, including Eric Goldman of the Santa Clara University School of Law and Jason Schultz at the University of California’s Boalt Hall School of Law in Berkeley.
That friend of the court brief covered longstanding criticisms of Righthaven and its no-warning, mass lawsuit initiative.
Noting Righthaven CEO and Las Vegas attorney Steven Gibson proclaimed as early as 2006 that online copyright infringements are worth trillions if not quadrillions of dollars annually in statutory lawsuit damages, the EFF-led brief criticized Righthaven for trying to cash in on the usually innocent mistakes of casual Internet users.
“Righthaven was an attempt to tap that ‘gold mine’ at the least possible cost,
by filing cookie-cutter lawsuits seeking statutory damages against individual
bloggers and websites that had allegedly infringed the copyright in various news
articles,” the brief said. “Righthaven’s ‘scorched earth’ campaign of mass copyright infringement suits...has been brought against the operators of numerous blogs and websites on the Internet, including disabled children, political bloggers, electoral candidates, etc.,” the brief said.
Separately, U.S. District Judge Kent Dawson in Las Vegas dismissed a Righthaven lawsuit Friday against Kevin Kelleher of Raleigh, N.C., who was accused of posting an R-J story on his website about public address announcers.
While Dawson could have dismissed the suit for the usual reason that Righthaven lacked standing, as Hunt found in the Democratic Underground case, the Kelleher case was unusual in that Righthaven has admitted it can’t locate the written assignment to the copyright covering the story at issue.
“Now, a year and a half after plaintiff filed its complaint, and with trial set to begin on Jan. 23, plaintiff has failed to produce a written assignment of the copyright at issue in this action,” Dawson wrote in his order, finding that without producing a copyright assignment to sue over, Righthaven lacked standing.
“Kevin Kelleher is a public address announcer who volunteers his time to call little league games. He shared an obscure newspaper article on his tiny, ad-free blog, and for that a lawyer-created operation called Righthaven sued him for $75,000. Kevin wouldn’t be bullied, however, and today he won the fight. The only remaining question in this case is whether Righthaven’s lawyers should face professional discipline for their conduct,” said Kelleher’s attorney, Andrew Dhuey in Berkeley, Calif., who is affiliated with the EFF.
Also Friday, U.S. Magistrate Judge Jacquelyn Austin in Greenville, S.C., recommended to U.S. District Judge Richard Gergel that Righthaven’s lawsuit against South Carolina Tea Party activist Dana Eiser be dismissed.
She found — despite Righthaven’s claims it owned the Denver Post column at issue in the case — that Righthaven didn’t control the material it was suing over.
That’s the same result Senior U.S. District Judge John L. Kane in Denver reached in a key case in his case court over a Denver Post photo.
Austin, like Kane, is recommending that Eiser be awarded her attorney’s fees should Gergel dismiss the suit as expected.
A state court lawsuit filed by Eiser against Righthaven, the Denver Post and others challenging Righthaven’s litigation strategy is pending.
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