Copyright enforcement outfit Righthaven is asking a federal appeals court to reinstate its copyright infringement lawsuit against a nonprofit that reposted an entire article from the Las Vegas Review-Journal.
Righthaven argues that U.S. District Court Judge James Mahan in Nevada incorrectly ruled that the Center for Intercultural Organizing made fair use of the newspaper's article. Mahan said in his ruling that the nonprofit's post was legitimate because Righthaven didn't plan to monetize the original article -- a 1,000-word Las Vegas Review-Journal piece about immigrants who were deported after being arrested for misdemeanors.
In the most controversial portion of his ruling, Mahan also said the article was "informational" -- implying that it was less worthy of copyright protection than a more creative piece. The original 33-paragraph article drew on material from documents and interviews with various sources.
The judge also said that Righthaven's decision to file suit without first asking the site to remove the material was a factor in his ruling.
Since launching last year, Righthaven has filed around 275 lawsuits against bloggers, nonprofits and other publishers for allegedly infringing copyright by reposting material that originally appeared in the Review-Journal and The Denver Post. The copyright statute doesn't require content owners to send takedown notices, but many do so to avoid costly litigation.
Mahan's decision, issued in March, appeared to mark the first time any court found that reposting an entire newspaper article can constitute fair use. Previously, many media executives assumed that bloggers or other publishers could only succeed with a fair use claim if they reposted a small portion of an article.
Righthaven has asked the 9th Circuit Court of Appeals to reverse Mahan's ruling for several reasons. The company says that Mahan's order was premature, because it was issued at an early stage in the case, before Righthaven and the nonprofit exchanged evidence.
Righthaven also argues that the Center for Intercultural Reporting didn't make fair use of the article. “The district court's fair use analysis is legally and factually flawed on numerous grounds,” Righthaven argues.
“In essence, the district court found that because the work was a news article, the totality of its content was informational and permissible for productive use by others,” Righthaven wrote. “In reaching this erroneous conclusion, the district court failed to accord any degree of creative effort to the work whatsoever.”
But even if the appellate court agrees with Righthaven and reinstates this lawsuit, the company faces other problems. Since Mahan dismissed this case, several other judges ruled that Righthaven never had the right to sue any sites that reposted news articles because it didn't obtain key rights to the articles.
Righthaven has been ordered to reimburse defense attorneys more than $180,000 in those matters. Earlier this month, a judge authorized federal marshals to seize Righthaven's assets to satisfy one judgment against for around $60,000.
Righthaven separately filed papers with the 9th Circuit on Tuesday, asking it to reinstate a lawsuit that was dismissed in June by U.S. District Court Judge Roger Hunt
That case involved a Review-Journal article that was reposted on a blog about “no-body” cases -- instances where a missing person is presumed dead but law enforcement officials haven't found a body -- run by former prosecutor Thomas DiBiase.
Hunt ruled that Righthaven didn't have the right to sue DiBiase because its contract with Review-Journal owner Stephens Media did not adequately transfer the story's copyright. The company is asking the appellate court to reverse that finding. “Righthaven was conveyed ownership along with the express right to sue,” it argues.