• by Wendy Davis , Staff Writer, January 10, 2012

Copyright enforcement outfit Righthaven might be floundering, but issues raised by the company's business model are still up for consideration in the courts.

One of the unresolved questions stemming from Righthaven's litigation campaign centers on whether newspapers that invite readers to share articles effectively grant readers licenses to reproduce material in ways that would otherwise infringe on copyright. That question -- which came up when Righthaven launched its litigation campaign -- is among the issues that the 9th Circuit Court of Appeals could address when it considers Rightaven's appeal in an unsuccessful lawsuit against the nonprofit Center for Intercultural Organization.

Righthaven sued the CIO for allegedly reposting an entire Las Vegas Review-Journal article. But U.S. District Court Judge James Mahan in Las Vegas ruled last year that the nonprofit made fair use of the piece for several reasons, including that Righthaven didn't plan to monetize the original article -- a 1,000-word Las Vegas Review-Journal piece about immigrants who were deported after being arrested for misdemeanors.

Righthaven has appealed that ruling. The company argues that Mahan decided the question prematurely, given that Righthaven and the nonprofit hadn't yet exchanged evidence.

Now the nonprofit has filed its brief, asking the 9th Circuit to affirm Mahan's decision. Among other arguments, the CIO says it didn't infringe copyright to the news story because the newspaper encouraged visitors to share its content. The paper's site “invites the visitors to save, email, print, share and post to a host of social networks by simply selecting various tabs on the page,” the group says. “By implication, the Review-Journal and Righthaven, as assignee to the copyrighted material, has consented to some form of reproduction of the articles posted on the Review-Journal website.”

The CIO also argues that Mahan's fair-use finding was justified given that the group didn't post the article for monetary gain. “CIO posted the article to raise awareness on an issue that directly impacts its constituency, the immigration community,” the group says. “Generally, the scope of the fair use doctrine is wider when the use relates to issues of public concern.”

Regardless of the outcome of this appeal, Righthaven is facing other problems. After Mahan dismissed the lawsuit against the nonprofit, several other judges ruled that Righthaven never had the right to sue for infringement of Review-Journal articles because the newspaper retained key rights to those pieces.

Before those rulings came out last summer, Righthaven had already filed suit against around 275 bloggers and small publishers.

What's more, Righthaven has been ordered to reimburse defense attorneys more than $220,000 in those matters. Last week, the company's domain name was auctioned off for around $3,000 to partially satisfy one of those judgments.