Several years ago, attorney Steven Gibson and the publisher of the Las Vegas Review-Journal cooked up a plan to raise money by suing Web users who reposted news articles on their blogs.
To accomplish this, Gibson founded the copyright enforcement outfit Righthaven, with backing from Sherman Frederick, former Review-Journal publisher. The company proceeded to file 300 lawsuits against nonprofits, news outlets and niche bloggers -- like a woman who blogged about cats. In one case, Righthaven sued a teen who suffered from both autism and diabetes. In another, the company sued a source for a Review-Journal article, who reposted the piece that cited his research.
Some of Righthaven's earliest targets agreed to resolve the cases by paying four-figure settlements. But others fought back in court, where they were able to uncover certain key facts that led to the copyright troll's defeat. Critically, they obtained the contract between Righthaven and the owner of the Review-Journal, Stephens Media. That document made clear that Righthaven didn't obtain all of the rights to the articles it was suing over -- including the right to license them. But without those rights, the company didn't have “standing” to sue.
Once the contract came to light, judges dismissed the outstanding lawsuits -- and ordered Righthaven to reimburse the defense attorneys for their work in the cases. In a few cases, judges also ruled that the bloggers made fair use of the articles they reposted -- even where the bloggers reposted the entire articles.
Those fair-use rulings came as a surprise, mainly because observers had long assumed that posting an entire newspaper article into a blog wouldn't be considered fair use. One explanation is that Righthaven's business model was so offensive to judges, that they were willing to give bloggers the benefit of any doubt.
Righthaven appealed to the 9th Circuit Court of Appeals. Today, that court issued a definitive ruling against the company. “Righthaven was not the owner of any exclusive rights under the Copyright Act,” the three-judge panel wrote. “It therefore lacked standing to sue for copyright infringement.”
But the 9th Circuit also vacated the fair use decision for procedural reasons. The appeals court ruled that the trial judge had no grounds to decide fair use, due to Righthaven's lack of standing. Even so, the fact that trial judges were willing to dismiss the lawsuits on fair-use grounds indicates that the federal judiciary doesn't like copyright trolls.