• by Wendy Davis , Staff Writer @wendyndavis, May 4, 2011

In yet another blow to Righthaven, U.S. District Court Judge James Mahan this week issued a written opinion that casts doubt on whether the copyright enforcer can ever win when Web publishers say they have a fair right to repost material from newspapers.

In this case, Righthaven sued Azkar Choudhry and his site, Pak.Org, for allegedly infringing copyright in an illustration that originally appeared in the Las Vegas Review-Journal. Choudhry raised several defenses, including fair use.

While Mahan wrote that he needed additional information before making a final decision, he also indicated that Choudhry has a good chance of prevailing on a fair use defense because his alleged use of the illustration doesn't harm Righthaven.

"Because Righthaven cannot claim the LVRJ's market as its own and is not operating as a traditional newspaper, Righthaven has failed to show that there has been any harm to the value of the copyright," Mahan wrote in the decision, issued Tuesday.

Of course, that's the situation in all of Righthaven's lawsuits, given that its business model seems to consist of scouring the Web for reposts of material from newspapers and then obtaining the right to sue in court, but not to license the material.

Even though this ruling could spell defeat for Righthaven, it appears to be better for the newspaper industry overall than a previous decision by Mahan involving the company. In the prior case, a lawsuit by Righthaven against the nonprofit Center for Intercultural Organizing, Mahan said that the site had a fair use right to post in its entirety a 1000-word Las Vegas Review-Journal about immigrants who were deported after being arrested for misdemeanors. Among other reasons, Mahan said the article was "informational," implying that it was less worthy of copyright protection than a more creative piece.