Bloggers and Website Owners Sued For Copying Portions of News Articles, but Plaintiff Righthaven Has Repeatedly Turned Left . . . Into Oncoming Traffic

Claiming to own copyrights assigned to it by various newspapers including the Denver Post and the Las Vegas Review-Journal (“LVRJ”), since March 2010, Righthaven, LLC has filed more than 260 lawsuits against bloggers and others alleging they infringed Righthaven’s copyrights by copying excerpts and entire articles of the publications without permission.  In the lawsuits, Righthaven has demanded monetary damages of $150,000 per infringement, attorney’s fees and the turnover of defendants’ domain names to Righthaven.  Many defendants have settled.  Some have chosen to fight.

In one of over 200 cases filed in Nevada, Righthaven contended that in 2008, the Center for Intercultural Organizing (“CIO”) posted on its website an entire article from the LVRJ.  The article concerned whether police in the Las Vegas area were targeting minorities.  The mission of CIO, an Oregon nonprofit organization, is dedicated to helping immigrants become aware of immigration-related issues in the United States.  CIO purportedly posted the article to educate the public about the issues contained within it.  On April 22, 2011, U.S. District Court Judge James C. Mahan ruled that CIO’s use of the article was fair as it was more “informational” than “creative.” [Judge Mahan’s Order]  “CIO’s use of the article is transformative. Although the former owner, the Las Vegas Review-Journal, used the article for news-reporting, the court focuses on the current copyright owner’s use, which, at this juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the article to educate the public is transformative and does not constitute a substitution of the plaintiff’s use . . . .

In another Nevada case, Righthaven sued Thomas A. DiBiase for displaying on his website a LVRJ article concerning a “nobody” murder case.  On April 15, 2011, U.S. District Court Chief Judge Roger L. Hunt granted DiBiase’s motion to dismiss from the case Righthaven’s demand for transfer of DiBiase’s website domain name.  The Court ruled that the Copyright Act does not authorize a plaintiff to seize the website domain of a defendant.  [Judge Hunt’s Order, dated April 15, 2011]

In Colorado, Righthaven sued Brian Hill, a mildly autistic blogger for unauthorized use of single Denver Post photograph.  Through his pro bono attorney, David Kerr, Hill brought a motion to dismiss the case.  Righthaven then requested additional time to oppose the motion asserting that settlement discussions were taking place, an assertion questioned by the Court based on Defendant’s opposition to the request.  In denying Righthaven’s request for more time, on April 7, 2011, U.S. District Court Judge John L. Kane characterized Righthaven’s tactics as follows:  “Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.”  [Judge Kane’s Order]  Righthaven has since dropped the lawsuit.  Judge Kane, however, ordered Righthaven to respond to Hill’s request for attorney’s fees.  Hill’s request for fees is set is set to be heard on May 20, 2011.  U.S. District Court Chief Judge Wiley Y. Daniel ordered all 58 copyright infringement cases filed by Righthaven in Colorado to be transferred to Judge Kane.  [Judge Daniel’s Order]

In another case filed in Nevada, Righthaven alleged that Michael Nelson, a local real estate agent, copied onto his blog and without authorization, “a significant and substantial portion” of an April 30, 2010 LVRJ story called “Program may level housing sale odds.”  On October 10, 2010, U.S. District Court Judge Larry R. Hicks granted Nelson’s motion to dismiss the lawsuit.  In his decision, Judge Hicks found that even though the purpose of the posting the information was commercial in nature, such use was fair because Nelson had actually reproduced only the first eight sentences of the 30 sentence article, the portion copied did not contain the author’s commentary, and Nelson directed his readers to the full text of the article.  [Judge Hicks’ Order]  Righthaven has appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit.

In another Nevada case, Righthaven sued the Democratic Underground LLC (“DU”), a political discussion forum, for a five-sentence excerpt of a news story out of LVRJ that a user posted on DU’s forum with a link back to the LVRJ website.  To help it defend the suit, DU enlisted attorneys from the Electronic Frontier Foundation (“EFF”), Fenwick & West LLP and Nevada attorney Chad Bowers.  In response to the lawsuit, DU countersued Righthaven and Stephens Media LLC, the owner of LVRJ, for a declaration of non-infringement.

Righthaven and Stephens Media moved to dismiss DU’s counterclaim and Righthaven requested voluntary dismissal of its claim against DU.  DU opposed these motions because of the potential that Stephens Media, not Righthaven, actually controlled the right to sue and DU did not wish to be sued by Stephens Media too and to preserve DU’s right to seek attorney’s fees made available under the Copyright Act.  DU also sought summary judgment of non-infringement on fair use grounds.

According to DU, Righthaven thereafter produced the Strategic Alliance Agreement that governs all of the relevant copyright assignments to Righthaven from the Stephens Media newspapers.  DU requested that it be allowed to file a supplemental memorandum to address the impact of the agreement on the three pending motions.  DU’s request was granted.  In the Supplemental Memo., DU asserted that the agreement did not provide sufficient ownership rights upon which Righthaven could sue, that Righthaven’s infringement lawsuit was a sham, and that “this Court’s determination of the validity of Righthaven’s assignment may effectively dispose of hundreds of Righthaven cases.”  [DU’s Supp. Memo.]

In his order, dated April 14, 2011, denying Righthaven’s request of the Court to reconsider its ruling allowing DU to file the Supplemental Memo., Chief Judge Roger L. Hunt stated: “The Supplemental Memorandum goes to the very heart of this litigation.”  He then stated: “Righthaven and Stephens Media have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar, with defendants who do not want to incur the costs of defending the lawsuits, are now offended when someone has turned the tables on them and insisting on a judgment in their favor rather than a simple dismissal of the lawsuit.” [Judge Hunt’s Order, dated April 14, 2011]

Judge Hunt will likely decide the motions after May 20, 2011, the end of the supplemental briefing schedule.  The case is one to follow and can be too at EFF’s website, which includes links to many documents in the case.  Another site tracking the action is Righthavenlawsuits.com.

Update: On June 14, 2011, after reviewing the Stephens Media/Righthaven “assignment” agreement and an amendment thereto, Judge Hunt agreed with DU’s position that Righthaven was not assigned sufficient rights in the copyrights sued upon.  Accordingly, he dismissed Righthaven’s complaint for lack of standing.  He did not stop there, however.  As part of his ruling, he also issued an order for Righthaven to show cause why it should not be sanctioned for failure to identify Stephens Media as an interested party.  Ouch!  [Judge Hunt’s Order dated June 14, 2011.]

Update: On June 20, 2011, Righthaven was struck again in federal court in Nevada, its corporate home.  Righthaven had sued Wayne Hoehn for copyright infringement for displaying an unauthorized reproduction of a copyrighted literary work entitled “Public Employee Pensions. We Can’t Afford Them” (the “Work”) as part of the content contributed by him to a website.  Hoehn attributed the source of the Work to the LVRJ.

In ruling on a motion to dismiss, U.S. District Court Judge Phillip M. Pro reviewed Righthaven’s “assignment” agreement and amendment and ruled that Righthaven did not possess an exclusive right in the Work and therefore lacked standing to bring the suit.  Judge Pro also ruled that even if Righthaven had standing to sue, Hoehn’s use of the Work was commentary in nature and it was not copied for commercial gain.  According to Judge Pro, the use was therefore fair and summary judgment in favor of Defendant Hoehn was granted. [Judge Pro’s Order dismissing the case.]

Update:  On July 15, 2011, Judge Hunt ordered Righthaven to pay $5,000 in sanctions for misrepresenting the interest Stephens Media had in the case.  According to EFF, during the hearing pertaining to sanctions, the Court also addressed Righthaven’s identity, noting: “In the Court’s view, the arrangement between Righthaven and Stephens Media is nothing more nor less than a law firm, which, incidentally, I don’t think is licensed to practice law in this state, but a law firm with a contingent fee agreement masquerading as a company that’s a party.”   The Court is giving Righthaven the opportunity to respond on July 25, 2011, to the contention that it is in effect not a company, but rather is a law firm practicing without a license.  The Court also ordered Righthaven to provide the judges and the defendants in hundreds of other cases with copies of (1) the Court’s decision finding Righthaven did not own the copyright, (2) the Strategic Alliance Agreement and (3) the transcript of the sanctions hearing.

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About Craig McLaughlin

I am an intellectual property attorney and trial lawyer with an office in Southern California. I enjoy representing clients and also enjoy flyfishing, skiing, golf, writing this blog and photography (see blog header). My website is: http://www.smartpropertylaw.com
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