Righthaven disputes fair use defense in copyright case

Las Vegas newspaper copyright enforcement company Righthaven LLC is disputing arguments that one of its lawsuits should be dismissed on fair use and other grounds.

Righthaven, a partnership between Las Vegas attorney Steven Gibson and an affiliate of newspaper chain owner Stephens Media LLC, since March has filed at least 192 copyright infringement lawsuits against website operators.

Most of the lawsuits accuse the defendants of displaying without authorization material from the Stephens Media-owned Las Vegas Review Journal. Two of the more recent lawsuits involve material from the MediaNews Group-owned Denver Post.

Some of the suits involve material posted by website managers, and others involve postings by third-party message-board users.

The Righthaven lawsuit campaign has attracted international attention in media and legal circles because it’s a departure from the past practice of Stephens Media and the Denver Post of dealing with copyright issues out of court.

Instead of filing lawsuits, most of the newspaper industry continues to ask or demand that copyright-infringing material be removed and/or be replaced with links.

Critics say Righthaven is a settlement shakedown operation because it typically demands $150,000 in damages and forfeiture of defendants’ website domain names, but usually settles for less than five figures, with defendants finding it cheaper to settle than to pay attorneys’ legal fees to fight Righthaven.

Stephens Media and Righthaven, however, have insisted the lawsuits are necessary to protect the newspaper industry from rampant online copyright infringements.

One of the Righthaven lawsuits pending in federal court in Las Vegas was filed against the Portland, Ore., nonprofit the Center for Intercultural Organizing (CIO), which assists immigrants and acknowledges it posted an entire Review-Journal story about immigrants without authorization.

In an unusual development, U.S. District Judge James Mahan ordered Righthaven to show cause why the suit should not be dismissed on fair use grounds, even though the defendants’ attorneys had not yet raised that defense.

Since then, Righthaven and attorneys for the CIO have filed briefs against and for dismissal.

Also, the nonprofit freedom of speech and privacy group Electronic Frontier Foundation (EFF) of San Francisco has arranged for a University of California law professor to file a friend of the court brief in favor of dropping the lawsuit on fair use grounds.

The professor, Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, and attorneys for the CIO argued that the story post in question qualified for a fair use exemption and did not harm the Review-Journal; that viewers of the CIO site go there to read news about immigrants rather than general Nevada news covered by the Review-Journal; and that the Review-Journal had encouraged the posting by suggesting that readers share its news online.

This alleged encouragement of readers to share Review-Journal material online has provided an “implied license” for readers to do so, Righthaven critics say.

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

“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,” Schultz wrote in his brief.

Righthaven this week fired back, disputing the arguments of CIO’s attorneys and Schultz.

“The defendants’ implied license argument is clearly procedurally improper: the assertion of an implied license theory is entirely non-responsive to the court’s order to show cause concerning fair use. Additionally, the defendants’ implied license theory is so far-fetched, it defies hundreds of years of copyright law and does not remotely approach providing a legitimate basis for dismissal,” Righthaven said in a brief filed with the court.

“The defendants are conveniently ignoring the fact that the Las Vegas Review-Journal (LVRJ) website only permits users to save a hyperlink leading to the articles published on the LVRJ website, or to e-mail a hyperlink leading to the LVRJ website. Importantly, both of these options ultimately require the user (or the user’s e-mail recipient) to access the LVRJ articles directly through the LVRJ website. In other words, the option to save or e-mail a hyperlink to the LVRJ articles rightfully ensures that Internet users will only view said articles as they are displayed by the LVRJ website, rather than by viewing unauthorized copies of the articles displayed on an infringing website (such as the CIO website),” Righthaven asserted. “This use of hyperlinks, prudently employed by the LVRJ website, is seemingly intended to both ensure copyright protection and invite user traffic to view LVRJ articles online.”

Righthaven attorneys also argued:

• “A defendant’s nonprofit status or educational motive does not somehow provide a blanket exemption from liability for infringement.”

• The infringement at issue isn’t protected by the fair use doctrine because fair use in part requires the use to be “transformative.”

“The infringement is nothing more than a copied-and-pasted, verbatim reproduction of the work (story), which altogether fails to ‘add something new,’” Righthaven’s filing said.

• The story at issue wasn’t just a collection of facts, but involved creativity and expression by the Review-Journal writer. Stories that exhibit creativity and expression are afforded greater protection against fair use defenses.

• The defendant has failed to explain why it didn’t simply post a link to the story, rather than the entire story. Posting a link would have achieved the CIO’s goal of educating website viewers about immigration issues, Righthaven said.

By posting a link, “the defendants would have drawn the attention of viewers to the work’s content without simultaneously engaging in blatant copyright infringement. The defendants neglected this option, and now act as if posting the infringement in its entirety on their own website was the only means to accomplish their goal,” Righthaven said.

• The defendant is wrong to assert that its posting of the story somehow benefited the Review-Journal by increasing interest in the Review-Journal and its news coverage. “Courts nationwide have repeatedly rejected the proposition that the use of a copyrighted work is fair because said use might somehow increase the demand for the plaintiff’s work. The defendants’ wishful contention in this regard also fails to account for the possibility that readers may be diverted from the work’s original source publication as a result of the infringement’s availability on the CIO website,” Righthaven argued in its court filing.

Righthaven’s brief was filed by its staff attorneys J. Charles Coons and Joseph Chu and an outside attorney representing Righthaven, Shawn Mangano of Las Vegas.

Separately, the EFF appealed for intellectual property attorneys to step up to help defend Righthaven defendants. While some of the Righthaven defendants are well-funded corporations, nonprofits and individuals, many are bloggers and mom and pop-type website operators who say they can’t afford to litigate the cases.

“The pace at which EFF is hearing from Righthaven defendants is increasing, and we and our cooperating attorneys are presently working at capacity. We need more attorneys versed in copyright issues to whom we can refer people who need pro bono (volunteer) help defending themselves from Righthaven,” EFF said in a post this week.