Commentary

Google Chimes In On Righthaven Appeal

Search giant Google is asking a federal court to reject a key argument put forward by copyright enforcer Righthaven in one of its appeals.

Righthaven's appeal in this particular case centers on whether the nonprofit group Center for Intercultural Organizing was entitled to claim fair use after reposting an entire article from the Las Vegas Review-Journal. U.S. District Court Judge Mahan in Las Vegas ruled last year that the nonprofit made fair use of the piece, noting 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.

Mahan's decision appeared to mark the first time any court has found that reposting an entire newspaper article can constitute fair use. Previously, many media executives had assumed that bloggers or other publishers could only succeed with a fair-use claim if they reposted a small portion of an article.

But Mahan found that even copying a piece in its entirety was legitimate, given all the circumstances. In addition to the fact that Righthaven didn't plan to market the work, the CIO's nonprofit status weighed in its favor, as did Righthaven's move to sue before first asking the site to take down the material. Mahan also said the article was “informational” and, therefore, less deserving of copyright protection than other types of work.

Righthaven appealed that ruling to the 9th Circuit. Among a litany of arguments, Righthaven said that reposting an entire article  is almost never “fair use.” To make that point, Righthaven said that the trial judge failed to follow a prior 9th Circuit decision on fair use -- a decision characterized by Righthaven as an “almost per se pronouncement” against fair use in cases where a work was copied in its entirety.

Google filed a friend-of-the-court brief disagreeing with Righthaven on that issue. The company said in its brief that it aimed to “rebut Righthaven’s false assertion that the fair use doctrine is unavailable when a work has been copied in its entirety.” 

The search giant adds: “That simply is not the law, nor should it be. Indeed, adoption of any such per se rule would wreak havoc on businesses like Google, whose ability to offer innovative and useful services to the public depends on the adaptability of the fair use doctrine.”

While the 9th Circuit might well issue a ruling that could affect Google (and a broad range of other companies), the outcome of this particular appeal probably won't make much of a difference to Righthaven, given the other problems facing the company. 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. What's more, Righthaven has been ordered to reimburse defense attorneys more than $220,000 in those matters. The company's domain name was auctioned off for around $3,000 to partially satisfy one of those judgments.

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