Commentary

Record Labels, Book Publishers Consider Weighing In On Righthaven Case

Righthaven's ill-fated litigation campaign seems to have caught the attention of the record and book industries.

The Recording Industry Association of America and Association of American Publishers are now considering whether to involve themselves in Righthaven's appeal of a ruling dismissing one of its nearly 300 cases. That appeal stems from a lawsuit by Righthaven against Wayne Hoehn, who allegedly posted a Las Vegas Review-Journal article in an online forum. U.S. District Court Judge Philip Pro in Nevada threw out Righthaven's case against Hoehn, ruling that the copyright enforcement shop lacked standing to sue because it never obtained licensing rights from the Las Vegas Review-Journal. Other judges in Nevada as well as Colorado have come to the same conclusion and dismissed Righthaven lawsuits.

Pro then went further and ruled that Hoehn also made fair use of the article -- even though he republished it in its entirety. That portion of the opinion surprised many observers because it defined the conventional wisdom that republishing an entire article would rarely -- if ever -- constitute fair use. 

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The RIAA and AAP now are mulling the possibility of friend-of-the-court briefs urging the 9th Circuit to vacate the fair use portion of the ruling. The organizations' position -- as spelled out by attorney Marc Randazza in a letter to outside counsel for the groups -- is that Pro's ruling on standing should have ended the matter.

An RIAA spokesperson says the group isn't taking sides in the case, “but just want to make sure that the law is applied properly.” The AAP hasn't yet responded to MediaPost's inquiries.

Randazza says in the letter that he believes a friend-of-the-court brief isn't “necessary or proper.” What's more, he argues, involvement in the litigation could backfire in the court of public opinion.

“Wayne Hoehn is a highly decorated Vietnam veteran who, while handing a series of humiliating defeats to Righthaven, has expended much of his savings in this battle,” Randazza wrote in a letter to Matt Williams, an attorney with Mitchell Silberberg & Knupp. “He has further become a symbol of resistance to the abusive litigation tactics engaged in by Righthaven. While these facts are not defenses to copyright infringement, they are very relevant to public perception -- and all signs point toward letting Righthaven fail once more and further embarrass itself without risking your clients’ reputations in the process.”

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