March 21, 2011 | By Kurt Opsahl

Fair Use For the Win in Righthaven Case

Last Friday, a judge in the Nevada federal district court patiently explained why fair use disposes of Righthaven's copyright claim arising from the republication of an entire news article by a nonprofit organization. The hearing was in one of the now-250 Righthaven copyright cases. A written order, which will help set a persuasive precedent for other copyright troll cases, will be issued later.

The hearing was in Righthaven v. Center for Intercultural Organizing. Righthaven sued CIO, an Oregon non-profit organization promoting immigrant rights, alleging copyright infringement of a Las Vegas Review-Journal article. Righthaven did not create the news article, but claims the right to sue based on an assignment from the LVRJ.

The copyright troll's business model is to search for blogs and websites that include a newspaper's material, acquire the right to sue on particular articles from the paper, and then file a lawsuit without any prior notice to the defendant. Righthaven seeks the maximum damages under the Copyright Act as well as control over the domain name, but is willing to settle for four-figure sums that seem calculated to be less than the cost of defense. Meanwhile, the actual articles that Righthaven sues over remain available for no charge on the newspaper website.

At the hearing, the Judge went through each of the four factors of a fair use analysis, explaining why they favored a finding of fair use and why Righthaven's legal arguments were unavailing. The judge noted that the work was being used by Righthaven "exclusively for lawsuits", and the lawsuits were having a "chilling effect" on fair uses. Since Righthaven's use of the work "does nothing to advance the Copyright Act's purpose, which is to encourage and protect creativity," Judge Mehan was inclined to find CIO's non-commercial use to be fair even thought it used the entirety of the article.

The Judge asked the defendants and amicus Professor Jason Schultz to draft the order. Righthaven will have an opportunity to comment before it is signed by the Judge and becomes final.

This case is the second case to rule on the merits of Righthaven's copyright-trolling lawsuits. The first, Righthaven v. Realty One, also found a fair use. Righthaven says it intends to appeal both cases.

EFF is representing the defendants in two Righthaven cases - Righthaven v. Democratic Underground and Righthaven v. DiBiase.


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