It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.
Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.
Righthaven has sued more than 200 websites, bloggers and commenters for copyright infringement. More than 100 have settled out of court.
The lawsuit decided Monday targeted Wayne Hoehn, a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, which is owned by Stephens Media. Hoehn posted the article, and its headline, “Public Employee Pensions: We Can’t Afford Them” on medjacksports.com to prompt discussion about the financial affairs of the nation’s states. Hoehn was a user of the site, not an employee.
Righthaven sought up to $150,000, the maximum in damages allowed under the Copyright Act. Righthaven argued that the November posting reduced the number of eyeballs that would have visited the Review-Journal site to read the editorial.
“Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate,” Judge Pro ruled.
Marc Randazza, one of Hoehn’s attorneys, said he would petition the judge for legal fees and costs.
The judge also said he took into consideration that only five of the editorial’s paragraphs were “purely creative opinions” of the author.
“While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls,” he wrote. “Accordingly, the work is not within ‘the core of intended copyright protection.’”
Judge Pro, in his fair-use analysis, also found that the posting was for noncommercial purposes, and was part of an “online discussion.”
That said, Pro did not need to decide the fair-use question.
That’s because he also found that Righthaven did not have legal standing to bring the lawsuit, a hot-button topic in the Righthaven litigation.
Pro’s decision came a week after a different Las Vegas federal judge threatened to sanction Righthaven, calling its litigation efforts “disingenuous, if not outright deceitful” when it came to standing. Standing is a legal concept that has enabled Righthaven to bring lawsuits on behalf of the copyrights owned by Stephens Media.
That blistering decision by U.S. District Judge Roger Hunt, the chief judge in Nevada, places into doubt Righthaven’s year-old business model, which is also under a Colorado federal judge’s microscope.
Hunt gave Righthaven two weeks to explain why he should not sanction it for trying to “manufacture standing.” Judge Hunt suggested Righthaven never had standing in any of its cases because Righthaven and Stephens Media had agreed to share the proceeds of any damages awards or settlements, yet Stephens Media kept ownership of the copyright.
Righthaven must own the copyright to sue on its behalf, Hunt ruled in a decision echoed by Judge Pro on Monday.
What’s more, in each of the 200-plus cases Righthaven brought on behalf of Las Vegas Review-Journal articles, Righthaven never disclosed, as required, that Stephens Media had a “pecuniary interest” in the outcome, Hunt wrote.