Pro then went further and said that he was also dismissing the case on fair use grounds -- even though the defendant, Wayne Hoehn, allegedly reposted an entire editorial as a comment on a message board. Pro followed the logic of an earlier ruling by U.S. District Court Judge James Mahan, which also found fair use where the defendant -- in that case an Oregon nonprofit -- had reposted an entire article.
It's safe to say that few if any news organizations in the country would have ever pursued a lawsuit against Hoehn. Not only was he acting as a commenter, and not a competing publisher, but his sole motive appeared to be sparking discussion -- which news companies typically view as a worthy goal. What's more, neither Righthaven nor The Review-Journal can make a credible showing that Hoehn deprived them of one penny of income.
However, Pro's ruling in Hoehn's favor contains some language that even observers who criticize Righthaven could find troubling. Pro wrote that one reason why he found fair use was because the piece in question was somewhat "factual" and, therefore, wasn't within "the core of intended copyright protection."
He wrote: "Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely 'creative work' in the realm of fictional stories, song lyrics, or Barbie dolls."