Judge focuses on question of ‘fair use’ in copyright lawsuit

Critics of copyright infringement lawsuits over Las Vegas Review-Journal stories keep coming back to one simple argument: There can be no online copyright infringements because the Review-Journal encourages readers to save, e-mail and print stories on its website.

That argument, sometimes referred to as an “implied license” to copy, is disputed by the Review-Journal’s copyright enforcement partner, Righthaven LLC.

But it was reinforced Tuesday by a University of California law professor and attorneys for an Oregon nonprofit that was hit with a copyright infringement lawsuit in August by Righthaven.

Everyone involved in the case agrees the nonprofit Center for Intercultural Organizing (CIO) of Portland posted without authorization on its website an entire 33-paragraph Review-Journal story from June 28 about Las Vegas immigrants and their relationship with the police. The post for the group that works with Portland immigrants credited the Review-Journal.

In a surprise development, U.S. District Judge James Mahan in Las Vegas ordered Righthaven to show cause why its no-warning lawsuit against the CIO should not be dismissed on fair use grounds.

This was a surprise because CIO’s attorneys had initially focused their defense on jurisdictional issues, rather than fair use issues.

Righthaven responded Nov. 29, saying, among other things, that the CIO use of the story hurt the Review-Journal because readers of the story on the CIO website would have no reason to go to the advertiser-supported Review-Journal website to read it.

In a “friend of the court” filing Tuesday, Jason Schultz, an assistant clinical professor of law and the co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California’s Boalt Hall School of Law at UC Berkeley, had a different take on how people posting Review-Journal stories on their websites affect the Review-Journal.

“Readers of CIO’s ‘Immigrant and Refugee Issues in the News’ blog are most likely Oregon residents interested in the non-profit’s mission,” Schultz wrote. “In contrast, the Las Vegas Review-Journal published the (immigrant) article to provide timely, generalized information to Las Vegas residents about events in their local community. It is highly improbable that anyone who would have otherwise purchased a paper copy of the Las Vegas Review-Journal or visited its website chose not to because of CIO’s blog post.

“CIO’s use of the article expanded public knowledge about immigration enforcement without cannibalizing the market for the original work,” Schultz wrote.

“In fact, there is no market for the work at all because it is owned by Righthaven, a company that does not publish news stories, but files copyright infringement lawsuits based on assigned copyrights as its exclusive business model,” he wrote

“And even before the Las Vegas Review-Journal assigned the copyright to Righthaven, CIO did not harm the market for the work. The Las Vegas Review-Journal elected to give the article away for free on the Internet and continues to do so to this day. It is difficult to fathom a scenario in which the Las Vegas Review-Journal could have been harmed by CIO’s use. At most, the Las Vegas Review-Journal might have been deprived of a few pennies, but the law does not concern itself with such trifles,” he wrote.

Righthaven seems to be obtaining copyrights simply for litigation, he reiterated.

“The article has been removed from its usual habitat. It is not owned by a newspaper, but has been assigned to a company that does not publish news stories, but uses them exclusively to file infringement lawsuits. That practice has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained in them and does nothing to advance the Copyright Act’s purpose of promoting artistic creation. When a copyrighted work is simply an instrumentality for litigation, it is properly granted the lowest possible amount of protection against a fair-use claim,” the brief said.

Schultz previously was a senior staff attorney at the San Francisco-based Electronic Frontier Foundation (EFF), a digital rights group that sponsored his brief in the Righthaven/CIO case. The EFF also represents two other Righthaven defendants as a public service.

Also weighing in Tuesday were attorneys for the CIO, James Olson and Michael Stoberski of the Las Vegas law firm Olson, Cannon, Gormley & Desruisseaux.

They noted that because of all the Righthaven copyright infringement lawsuits filed since March in U.S. District Court for Nevada — at least 186 — the court “has an opportunity to establish a standard upon which future Internet fair use lawsuits are analyzed.”

The CIO attorneys argued the Righthaven lawsuits aren’t about protecting copyrights, but are about maximizing Righthaven’s profits by coercing defendants into settlements.

“To this very day, the article is still available for anyone to read on the Review-Journal website. Any viewer can simply right click on the mouse to copy and paste the full text of the article and reproduce it in other media,” the CIO attorneys said in their filing. “The website invites the readers to save copies of its articles onto personal computers and email articles to third parties by simply selecting a tab at the top of the page. Despite its granting website visitors the explicit right to replicate entire articles, Righthaven has brought this lawsuit and many more to achieve a simple purpose, maximization of profits.”

“On the one hand, Righthaven encourages its readers to disseminate its articles to third parties, but considers the posting onto a blog copyright infringement. If CIO would have selected the ‘email this’ icon and sent the article to all of its registered members, Righthaven surely could not complain about the manner in which it was disseminated,” the CIO attorneys wrote.

The attorneys also took a shot at Rightaven’s claim that its lawsuits are necessary to deter copyright infringement.

“While Righthaven may be the current holder of the article, it was created solely to sue third parties in an effort to limit any bad publicity that might accompany a lawsuit filed on behalf of the Review-Journal,” they wrote. “The notion that Righthaven is fighting to preserve intellectual property is a mere ruse.”