Righthaven judge: Review-Journal ‘implied license’ defense may have merit

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Las Vegas copyright enforcement company Righthaven LLC has suffered a legal setback, with the newest federal judge in Las Vegas ruling one of the Righthaven defendants may have a meritorious defense in arguing the Las Vegas Review-Journal provides an "implied license" for the online reposting of its stories.

U.S. District Judge Gloria Navarro on Friday granted a request by defendant Jan Klerks of Chicago that a clerk's default against him be set aside so he can fight the Righthaven lawsuit -- a motion Righthaven had opposed.

Klerks was sued May 19 after a Review-Journal story was posted on his website www.skyscrapercity.com, a nonprofit site covering skyscrapers and urban development.

The clerk's default was entered after Righthaven said Klerks was served with the suit but failed to respond by the deadline -- attorneys for Klerks with the Las Vegas office of the law firm of Lewis and Roca argued Klerks had not been served.

Navarro on Friday sided with Klerks in that part of the dispute, saying that once he learned from the Las Vegas Sun that he was being sued he obtained counsel to respond to the lawsuit.

But perhaps of more importance, Navarro sided with Lewis and Roca attorneys Michael McCue and Nikkya Williams, who argued one reason for setting aside the default was that Klerks may have meritorious defenses to the copyright infringement allegations of Righthaven, which has sued at least 129 website operators since March over unauthorized postings of Review-Journal stories.

Navarro in her ruling wrote: "The defendant has reasonably asserted that the plaintiff’s conduct may have constituted an implied license and that the defendant may have properly inferred that the (copyright) owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the Internet."

The plaintiff's conduct the judge referred to, according to the Lewis and Roca attorneys, is that: "The Las Vegas Review-Journal offered the allegedly infringed work (story) to the world for free when it was originally published. It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. The Las Vegas Review-Journal website also enables third parties to 'right click' and copy the text of articles on the site. Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement."

The judge also ruled Klerks may have meritorious "fair use" defenses, noting the posting at issue was likely "primarily informational" and writing:

"Defendant argues that the allegedly infringing article was posted by a third-party to an informational, non-commercial website maintained by defendant and that this website is dedicated to sharing information about skyscrapers and urban development among enthusiasts around the world. As it can be properly asserted and reasonably argued in this case that the article was posted by a reader of the defendant’s site for the non-commercial purpose of sharing information and not for the purpose of making a profit for the reader or the site, the ... factor is sufficiently satisfied and weighs in favor of setting aside the default."

The judge's findings on these issues are not final and Righthaven will have plenty of opportunities to contest Klerks' contentions should the lawsuit proceed and not be settled.