Commentary

Judge Questions Righthaven's Right To Bring Infringement Cases

In the year since it launched, copyright enforcer Righthaven has been able to convince dozens of bloggers and small publishers to settle infringement lawsuits stemming from reposts of news articles. But in some cases where defendants fought back, Righthaven has suffered significant blows.

In the latest example of judicial pushback, U.S. District Court Judge James Mahan in Nevada is questioning whether the company's contract with Las Vegas Review-Journal owner Stephens Media actually gives Righthaven the ability to sue.

The contract, unsealed earlier this month at the request of the Electronic Frontier Foundation, provides that Stephens Media retains the ability to license the articles, while Righthaven only has the right to bring infringement cases. The potential problem with that arrangement is that Righthaven can't argue that it's being economically harmed by any infringement, because it lacks the ability to profit from the news articles. Litigants typically must be able to show some sort of economic damage as a prerequisite to suing.

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Mahan this week ordered Righthaven to address why the infringement lawsuit it brought against the Nevada-based blog Pahrump Life shouldn't be dismissed; a hearing has been scheduled for May 12. Pahrump Life, which opposes construction of a new prison in the town, allegedly reposted a Las Vegas Review-Journal article outlining problems at a private prison in Arizona.

In a separate Righthaven matter, Mahan recently issued a written opinion outlining why he found that a nonprofit made fair use of an article that it reposted in its entirety. Among other reasons, Righthaven had no plans to use the article other than to make money through lawsuits: "Although the former owner, the LVRJ [Review-Journal], used the article for news-reporting, the court focuses on the current copyright owner's use, which, at this juncture, has been shown to be nothing more than litigation-driven," he wrote.

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