Nelson, who blogs about home ownership, was sued for allegedly reposting eight sentences of a 30-sentence Las Vegas Review-Journal article. U.S. District Court Judge Larry Hicks clearly had no patience for the lawsuit and dismissed it as an early stage of the proceedings. "Nelson's use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article," Hicks wrote, noting also that Nelson linked back to the original article in his post.
At the time, the move seemed unusual because the dismissal came very early in the case.
The decision also forced the company to tweak its business strategy. Shortly after the ruling came down, Righthaven attempted to withdraw a separate lawsuit against political site Democratic Underground, which allegedly posted five sentences of the 50-sentence Review-Journal article "Tea Party power fuels Angle." In its court papers in that case, Righthaven said it would stop suing bloggers who reposted less than 100% of a work.
This week, Righthaven appealed Hicks' ruling to the 9th Circuit.
The company must have figured now was as good a time as any to seek appellate review, given that the issues presented by its litigation campaign are bound to end up decided by an appeals court anyway. The appeal also sends a message to other judges presiding over Righthaven lawsuits that their actions will be scrutinized.
At the same time the move also poses some risk for Righthaven, because the appellate court could signal how it feels about the company's practice of suing bloggers, nonprofits, political sites and other publishers for reposting all or portions of news articles.