Judge questions whether nonprofit’s Web posting harmed R-J

By Steve Green

Tuesday, Dec. 28, 2010 | 2:33 p.m.

A judge was skeptical Tuesday about claims the Las Vegas Review-Journal was harmed when an entire Review-Journal story was posted without authorization on an Oregon nonprofit's website.

U.S. District Judge James Mahan commented on those claims during a hearing he called in which Righthaven LLC, the Review-Journal's copyright enforcement partner, was ordered to show cause why its lawsuit against the nonprofit should not be dismissed on fair use grounds.

Mahan didn't rule on the fair use issue Tuesday.

After an attorney for Righthaven endured tough questioning from Mahan about whether there were any issues that needed to be investigated before the hearing could proceed, Mahan gave Righthaven until Jan. 7 to file a list of issues that Righthaven feels are subject to discovery, or evidence-gathering.

The case at issue Tuesday was a Righthaven lawsuit filed Aug. 5 against the Portland, Ore., Center for Intercultural Organizing (CIO), which assists immigrants and acknowledges it posted without authorization a 33-paragraph Review-Journal story about immigrants' relationship with Las Vegas police.

The Review-Journal was credited as the source of the information on the CIO website.

Mahan opened Tuesday's hearing by noting that Righthaven, which has filed at least 195 copyright infringement lawsuits since March, settles most of its cases.

"Fair use seems like an overriding issue," Mahan said. "These cases typically get settled and the fair use doctrine never gets properly raised. I think it needs to be addressed."

Shawn Mangano, a Las Vegas attorney representing Righthaven, said it would be premature for Mahan to dismiss the lawsuit against the Oregon center at this stage of the litigation since there has been no discovery.

An issue that needs to be investigated is how the Center for Intercultural Organizing's unauthorized use of the story affected the market value of the story, Mangano said.

Mahan, however, repeatedly suggested he does not see that as an issue of material fact.

"You really think the defendants are competing with the Review-Journal and making a ton of dough on this?" Mahan asked.

Mahan said the center benefited from the story as it furthered the center's educational mission, but he suggested the center's website isn't diverting traffic from the Review-Journal website.

A person reading the story on the center's website "may have never heard of the Review-Journal before reading that article," the judge said.

"It's a totally different market," he said.

Mangano, however, said issues that need to be investigated include how much traffic the Oregon center's website generates and whether it received donations as a result of its posting of the Review-Journal story.

The Review-Journal and Righthaven were harmed, Mangano said, because people "are going to read the story on their (CIO) website, not on the Review-Journal's," where they will be exposed to advertising and other Review-Journal stories.

But with Righthaven now owning a copyright to the story, Mahan said: "There is no market for the copyrighted work. You are not publishing it. You are not operating a newspaper."

"Righthaven only sues people, apparently," Mahan said.

Noting the story at issue is still available for free on the Review-Journal website, Mahan asked: "Are you suing the Review-Journal?"

Mangano said there's probably a provision in the copyright transfer agreement that allows the Review-Journal to continue to display on its website its own story.

Separately, Righthaven objected to the participation in the case of professor Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California-Berkeley.

Schultz filed a friend of the court brief listing reasons the suit could be dismissed on fair use grounds and also arguing the Review-Journal had encouraged the online posting by the Oregon center by suggesting that readers share its news online.

Righthaven complained that Schultz made "numerous, unsupported factual assertions" in his brief.

The company said that while Schultz is participating "apparently on the basis that he is a citizen concerned about the application of the Copyright Act," he's really biased against Righthaven since he's a former senior staff attorney for the Electronic Frontier Foundation (EFF) of San Francisco and the EFF assisted in his participation in the Center for Intercultural Organizing case.

"Schultz is far from a 'friend of the court.' Rather, he is the proverbial wolf in sheep's clothing who seeks to mislead this court's fair use analysis for the benefit of EFF's defense of other cases now pending and future cases yet to be filed," Righthaven complained.

The EFF is connecting Righthaven defendants with volunteer attorneys, is representing two Righthaven defendants as a public service and has filed counterclaims charging the Righthaven litigation campaign is an abuse of the court system and the Copyright Act since, the EFF asserts, the lawsuits are frivolous and are filed without warning as part of a settlement shakedown scheme.

Righthaven, the Review-Journal and the Review-Journal's owner, Stephens Media LLC, however, argue the lawsuits are necessary to prevent infringement of newspaper industry copyrights.

Mahan sided with Schultz on Tuesday, ruling he could make oral arguments in the case although the hearing was adjourned before Schultz had the opportunity to do so. Mahan said it's not unusual for advocates of various causes to appear as friends of the court.

Also, Righthaven this week filed at least three more copyright infringement lawsuits. The latest to be sued were:

-- Daniel Benedix and Tucson DUI News, accused of posting Review-Journal material without authorization at tucsonduiattorney.biz.

-- Motown Muscle Inc., allegedly associated with the website motownmuscle.com, accusing of posting Review-Journal material. Motown Muscle appears to be part of the Musclecar Club in Detroit.

-- Charles Coker, allegedly associated with the website ccoker.net and accused of posting Review-Journal material.

A message for comment was left with Motown Muscle. Benedix and Coker could not be located for comment.

Righthaven is a partnership between Las Vegas attorney Steven Gibson and an affiliate of Stephens Media.

The Righthaven lawsuits involving Review-Journal and Denver Post material are a departure from the past practice of the Review-Journal and the Post of dealing with copyright issues out of court. Most newspapers still don't sue infringers, preferring instead to ask or demand that copyright-infringing material be removed and/or be replaced with links.