Commentary

Three's A Trend: Another Judge Challenges Righthaven's Claims

Copyright enforcement outfit Righthaven, which sues bloggers, nonprofits and other small Web publishers for allegedly reposting articles from the Las Vegas Review-Journal, appears to be running into some hurdles in its litigation campaign.

First, U.S. District Judge Gloria Navarro in Nevada ruled that the Las Vegas Review-Journal might have granted an implied license to blogger Jan Klerks, who allegedly reposted a Review-Journal article on his noncommercial site about urban development, www.skyscrapercity.com. Navarro also ruled that Klerks might have made fair use of the article, despite the allegation that the article was reposted in its entirety.

Next, Judge Larry Hicks in Nevada dismissed Righthaven's lawsuit against realtor-blogger Michael Nelson, ruling that posting eight sentences of a 30-sentence Review-Journal article was a fair use.

Now a third federal judge in Nevada, James Mahan, has directed Righthaven to prove that a nonprofit didn't make fair use of an article it reposted -- even though the defendant, the Portland, Ore.-based Center for Intercultural Organizing, didn't argue fair use as a defense. What's more, the nonprofit allegedly posted the entire 33-paragraph article that originally appeared in the Review-Journal.

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Perhaps it's still too soon to say that momentum is shifting against Righthaven, but it certainly seems as if some members of the federal judiciary don't wholeheartedly endorse the company's lawsuits.

Righthaven has filed more than 150 cases since launching in March and in every known instance has filed suit without first asking the publisher to voluntarily remove the material.

While the company might be within its legal rights to sue without warning, most businesses simply don't act that way -- and for good reason. First, lawsuits tend to be draining, financially as well as psychologically. Many litigants would rather avoid those expenses if possible.

A second, perhaps less common reason, is that lawsuits carry the potential to create precedent that could affect litigants in other cases.

Before Righthaven started its campaign, many observers thought it would be extremely difficult for people accused of copyright infringement to successfully argue fair use when they had lifted an entire article, as opposed to excerpts.

Now, however, that's no longer the case. These lawsuits appear to have left some judges ready to rule that copying an entire news article can be fair use, especially when done by a nonprofit and for noncommercial purposes.

If so, that shift might benefit many Web users, and might well encourage public discussion and debate of newsworthy articles. But it's hard to imagine that the Las Vegas Review-Journal was hoping its deal with Righthaven would result in a broadening of the fair-use doctrine.

1 comment about "Three's A Trend: Another Judge Challenges Righthaven's Claims".
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  1. Eric Goldman from Santa Clara University School of Law, November 24, 2010 at 8:14 p.m.

    Don't forget that Sherman Frederick, the publisher of the Las Vegas Review-Journal that was leading the charge from the publishing side, also apparently got sacked. Eric.

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