Commentary

Judge Says Blogger Sued By Righthaven Might Have Fair-Use Defense

Copyright enforcement outfit Righthaven must have expected that its infringement lawsuits against small publishers and bloggers were sure wins. After all, in many cases the defendants appeared to have violated at least the letter of the copyright law by displaying significant portions of Las Vegas Review-Journal articles on their own sites.

But a federal judge in Nevada just issued a decision indicating that Righthaven might face some obstacles in its litigation campaign -- an initiative that has so far resulted in more than 100 lawsuits against small publishers, bloggers, nonprofits and even political candidates like Sharron Angle. In every known case, Righthaven filed suit without first asking the sites to remove the material.

U.S. District Judge Gloria Navarro on Friday set aside a default judgment that had been entered against blogger Jan Klerks, who publishes a noncommercial site about urban development, www.skyscrapercity.com.

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In her eight-page ruling, Navarro wrote that Klerks has at least two meritorious defenses to an infringement action -- that he made fair use of the newspaper's material, and that the newspaper granted him an implied license.

Klerks argued that the paper's practice of encouraging readers to save articles and to share them with others amounts to an implied license to post them. Navarro found Klerks' position on that point strong enough to warrant further proceedings. "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 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," she wrote.

Navarro also indicated that Klerks has a decent fair-use argument because of the nature of his blog. "Noncommercial, nonprofit activity is presumptively fair," she wrote. "This is because a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

Of course, none of that means that Klerks will prevail at a trial. There are other factors that go into determining both fair use and implied licenses. But the ruling, which shows that Navarro is taking Klerks' arguments seriously, could give other defendants additional ammunition against Righthaven.

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