December 5, 2011 | By Kurt Opsahl

RIAA and AAP File Amicus Brief in Righthaven Appeal

The Association of American Publishers and the Recording Industry Association of America have decided to cozy up to a copyright troll, filing an amicus brief in the Ninth Circuit appeal of Righthaven v. Hoehn.  The Hoehn case is one of many decisions where a district court dismissed the case brought by copyright troll Righthaven. Indeed, Righthaven has lost on the merits every single time a court has considered its arguments (before six judges and counting). In Hoehn, the court correctly found both that Righthaven did not own the Las Vegas Review-Journal news article at issue and that his use was a fair use under copyright law. 

The AAP and RIAA do not weigh in on Righthaven's sham copyright assignment from Stephens Media, the publisher of the Review-Journal.  Rather, they devote their brief to civil proceedure, arguing it was error for the court to even consider whether the use was fair. They assert that the problem was "relying upon Righthaven ... to rebut the defendant's assertions" on market harm, instead of relying on Stephens Media, the true owner.

This conclusion is a bit dubious.  In another Righthaven troll case, EFF represents Democratic Underground, who counterclaimed for declaratory relief against Stephens Media, the publisher of the Review-Journal articles.  Faced with our Motion for Summary Judgment on fair use, Stephens Media conceded that the use was fair.   

In Hoehn, Democratic Underground, and other Righthaven cases, the use was a non-infringing fair use under the copyright law.  That conclusion stems not from who argues, but from the Copyright Act and the caselaw that allow for certain uses without authorization of the copyright owner.  The AAP and RIAA are upset not becasue the court failed to follow their view of civil procedure, but becasue they want to take a good fair use case—what they call a "disturbing precedent"—off the books. 

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