• by Wendy Davis  @wendyndavis, December 30, 2010

A federal judge had some pointed questions this week for Righthaven, a copyright enforcement outfit that acquires rights to newspapers' articles and then sues bloggers and other Web publishers who repost the pieces.

U.S. District Judge James Mahan last month directed Righthaven to address whether a nonprofit had a fair use right to repost a 1000-word Las Vegas Review-Journal article about immigrants who were deported after being arrested for misdemeanors. At a hearing this week, Mahan reportedly focused on whether the nonprofit's use of the article deprived the owner of the ability to monetize it -- a factor in determining fair use.

"You really think the defendants are competing with the Review-Journal and making a ton of dough on this?" Mahan asked an attorney for Righthaven, according to an account of the hearing in the Las Vegas Sun. Mahan added that a visitor to the nonprofit's site "may have never heard of the Review-Journal before reading that article."

Righthaven's lawyer argued that Mahan should not make a decision about fair use until more facts emerged, including whether the nonprofit's use of the article had an impact upon its market value.

The judge took the matter under consideration, but the fact that he held the hearing at all was seen as surprising for a few reasons. First, the defendant, the Portland, Ore.-based Center for Intercultural Organizing, did not itself argue fair use. Second, the organization allegedly reposted the entire 33-paragraph article that originally appeared in the Las Vegas Review-Journal.

Many observers had assumed that courts would hesitate to rule that reprinting a piece in its entirety constituted a fair use. But fair use depends on a host of factors -- including not only how much of the material was reprinted but also whether doing so hurt the owner's ability to make a profit from the original.

Should Mahan dismiss the case, the move would mark at least the second time that a judge recently ruled against Righthaven, a start-up that since launching in March has filed around 200 lawsuits against nonprofits, bloggers like Matt Drudge, politicians and small publishers. Most of the cases have dealt with articles that initially ran in the Las Vegas Review-Journal, but a few recent lawsuits concern material that was initially published in the Denver Post.

Righthaven obtains the rights to articles after they appear and then sues sites that have reposted the pieces. The company typically asks for up to $150,000 and transfer of the sites' domain names. Unlike many copyright owners, Righthaven sues without first asking the sites to remove the material. Despite the shop's aggressive opening posture, many of the lawsuits appear to have settled for less than five figures.

Righthaven has recently suffered some legal setbacks. In November, U.S. District Court 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. Righthaven subsequently said it would stop bringing suits against defendants who post less than 100% of an article.

In addition, the digital rights group Electronic Frontier Foundation is representing some defendants, and in other cases, helping to find attorneys for Web site operators who have been sued.

In the Center for Intercultural Organizing lawsuit, former EFF attorney Jason Schultz, now an assistant clinical professor at University of California's Boalt Hall School of Law, filed a friend-of-the-court brief arguing that reposting an entire article can constitute fair use. In his papers, Schultz called attention to a few famous instances where courts found fair use even though an entire work was copied. In what might be the best-known example -- a lawsuit about whether taping shows on VCRs infringed copyright -- the U.S. Supreme Court ruled that recording shows in their entirety for time-shifting purposes was a fair use. In another example, a court cleared Google of copyright infringement for placing copies of online works in its cache.

Schultz also argued that the Center for Intercultural Organizing likely didn't affect the market value of the Review-Journal article, given that the newspaper doesn't charge for access to the article. "At most, the [Review-Journal] might have been deprived of a few pennies, but the law does not concern itself with such trifles," he wrote.