Digital freedom group gains another victory over R-J, Righthaven
11 March 2012
Digital freedom group the Electronic Frontier Foundation (EFF) has won another victory against the Las Vegas Review-Journal and its copyright enforcement partner.
On Friday, U.S. District Judge Roger Hunt in Las Vegas issued a declaratory judgment finding that the Democratic Underground did not infringe on the copyright to an R-J story when a user of the group’s website posted to the site a four-paragraph excerpt of a 34-paragraph R-J story.
The excerpt credited the information to the R-J and linked to the R-J.
In an age in which newspaper stories are regularly linked to by special interest websites, this post could be viewed as doing the R-J a favor by driving traffic to its website.
But in this case, R-J copyright enforcement partner Righthaven LLC in 2010 hit the Democratic Underground with a no-warning lawsuit demanding $75,000 in damages and forfeiture of the Democratic Underground website domain name to Righthaven.
The Democratic Underground, represented by the San Francisco-based EFF, attorneys at the law firm Fenwick & West LLP, and Las Vegas attorney Chad Bowers, fought back against Righthaven and hit R-J owner Stephens Media LLC with a counterclaim.
The counterclaim charged Righthaven’s lawsuit resulted from a sham copyright assignment from Stephens Media to Righthaven. It said Righthaven – which is not a law firm – was doing Stephens Media’s bidding in court in exchange for a cut of lawsuit winnings.
Hunt eventually dismissed Righthaven from its own lawsuit, finding Stephens Media was the "real party in interest."
That’s because the R-J maintained control of the story despite Righthaven’s claims it owned the story.
In another Righthaven case litigated by the EFF, Hunt struck down Righthaven’s standard lawsuit demand that defendants forfeit their website domain names to Righthaven.
That was after defense attorneys pointed out there was nothing in the Copyright Act authorizing such a forfeiture and after they argued this was an abusive lawsuit tactic aimed at coercing defendants into settling with Righthaven.
In the Democratic Underground case, Hunt entered judgment against Righthaven last week.
After entering judgment against Righthaven, Hunt issued the declaratory judgment on Friday. That was after Stephens Media did not contest a finding of fair use for the Democratic Underground.
"Democratic Underground and (DU official) David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. (They) neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed," the judgment says. "The act of posting this five-sentence excerpt of a 50-sentence news article on a political discussion forum is a fair use pursuant to (the Copyright Act) and the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose."
This was the fourth fair use ruling against Righthaven. The company had appealed the first three fair use losses, as well as losses on the standing issue, but lately appears to not be prosecuting the appeals.
The next step in the Democratic Underground case will be for the EFF and its associated attorneys to request their legal fees – likely in the hundreds of thousands of dollars – from Righthaven and potentially Stephens Media.
In commenting on Friday’s declaratory judgment, EFF attorney Kurt Opsahl said it was significant since it "makes it harder for copyright holders to file lawsuits over excerpts of material and burden online forums and their users with nuisance lawsuits."
"Judge Roger Hunt’s judgment confirms that an online forum is not liable for its users’ posts, even if it was not protected by the safe harbors of the Digital Millennium Copyright Act’s (DMCA) notice and takedown provisions. The decision also clarifies that a common practice on the Internet – excerpting a few sentences and linking to interesting articles elsewhere – is a fair use, not an infringement of copyright," Opsahl wrote in a report on Hunt’s decision posted on the EFF website.
Under the DMCA, websites are protected from copyright lawsuits based on users’ posts to their websites if they register with the U.S. Copyright Office and post a notice advising how copyright owners can demand infringing material be removed.
Righthaven, in its 275 lawsuits filed since March 2010, focused on websites that weren’t DMCA protected. Those included sites where the material was posted by the website owner and where the website had failed to register with the Copyright Office and didn't post a takedown notice.
With Righthaven apparently not operating any longer, as it hasn’t been meeting deadlines to file briefs or show up for court hearings, the EFF is continuing to pursue sanctions against the company and its CEO Steven Gibson, a Las Vegas attorney.
The sanctions request involves Righthaven’s failure to turn over financial information in another case as the EFF seeks to recover $119,488 in legal fees from Righthaven.
That’s the case involving defendant Thomas DiBiase, a former federal prosecutor who has a website about murder cases in which the victims' bodies have not been found.
He later found Righthaven lacked standing to sue DiBiase.
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