Judge to Righthaven: Show why lawsuit shouldn’t be dismissed

A federal judge in Las Vegas is examining whether another Righthaven online copyright infringement lawsuit should be dismissed on fair use grounds.

Righthaven LLC is the Las Vegas Review-Journal's copyright enforcement partner that since March has sued at least 172 website operators and bloggers throughout North America in federal court in Las Vegas, charging material from the Review-Journal was posted on their sites without authorization.

The Review-Journal and its owner, Stephens Media LLC, say the lawsuits, typically filed without warning, are necessary to deter infringements of Review-Journal material. Righthaven files the suits after detecting infringements and then obtaining copyrights to the stories at issue from Stephens Media.

Critics say the lawsuit campaign amounts to a settlement shakedown effort involving frivolous suits that are cheaper to settle than fight. They note most of the newspaper industry tries to resolve copyright problems out of court before resorting to litigation.

In one of the Righthaven lawsuits involving Realty One Group Inc., U.S. District Judge Larry Hicks on Oct. 19 dismissed the suit against defendant real estate agent Michael Nelson, saying his posting of the first eight sentences of a 30-sentence story amounted to fair use of the Review-Journal story.

Righthaven settled with Nelson so it can't appeal that ruling. But Righthaven expects a similar fair use ruling from Hicks involving codefendant Realty One Group, and plans at that time to appeal it to the 9th U.S. Circuit Court of Appeals.

In the meantime, U.S. District Judge James Mahan has ordered Righthaven to show cause why another of its lawsuits shouldn't be dismissed on fair use grounds.

That case involves the Center for Intercultural Organizing of Portland, Ore., which was sued by Righthaven in August after an entire 33-paragraph Review-Journal story about Las Vegas immigrants from June 28 was posted on the center's website, crediting the Review-Journal.

The nonprofit says it was founded by Portland-area immigrants and refugees to combat widespread anti-Muslim sentiment after 9/11. It now works to strengthen immigrant and refugee communities through education, civic engagement, organizing and mobilization.

Mahan didn't elaborate in his show cause order on the fair use issue, and Righthaven hasn't yet responded to the order.

The order came as a surprise as it was Mahan, not the defendant, who directly raised the fair use issue.

Attorneys for the Center for Intercultural Organizing with the Las Vegas law firm of Olson, Cannon, Gormley & Desruisseaux have so far focused their defense on a jurisdictional issue. They say the Nevada court doesn't have jurisdiction in the dispute since the Center for Intercultural Organizing doesn't do business in Nevada and doesn't try to serve a Nevada audience with its website.

The attorneys for the Center for Intercultural Organizing, in their responses, have also been critical of Righthaven's litigation strategy.

"Plaintiff was solely established to operate under a business model in which it trolls the Internet to locate articles it believes originated from the Las Vegas Review-Journal website without the express consent of the copyright holder," attorneys James Olson and Michael Stoberski wrote in a September filing. "In most cases, the complaints are filed against people or organizations who do not profit in any way from posting such articles, that are already offered for free on the Las Vegas Review-Journal website. Rather than issue any type of cease and desist letters, plaintiffs immediately file suit and attempt to extract settlements from the defendants."

Noting the Center for Intercultural Organizing is a nonprofit that does not charge subscription fees or derive any income from its website; and the center's efforts are directed solely at Portland residents, the attorneys wrote: "To subject a nonprofit organization to the jurisdiction of Nevada under these facts would be unreasonable."

They also argued the Review-Journal "allows articles to be copied and pasted easily from its website."

"Moreover, it encourages its readers to send articles to third parties. Through these actions, the original holder has granted its readers an implicit license to re-publish its articles," the center's attorneys wrote.

Righthaven attorneys, however, insisted in a court filing that the court in Nevada has jurisdiction as: "The defendants committed blatant copyright infringement of a Righthaven-owned literary work which clearly derives from a Nevada-based daily publication and is of specific concern to Nevada residents."

Hicks' ruling in the Realty One case didn't set a binding precedent for the other Nevada federal judges presiding over Righthaven cases. But Righthaven observer Eric Goldman said Mahan's order to show cause in the Intercultural Organizing case likely resulted from Mahan becoming aware of Hicks' ruling.

"It could be that the judge already assumes the defendants made a fair use and is wondering if Righthaven has anything persuasive to convince him otherwise. More likely, the judge is aware of the Realty One opinion and wants Righthaven to help explain how this case differs. Either way, this is not a good development for Righthaven; but if it's the latter, it's not necessarily bad as Righthaven can distinguish the situations on several grounds," said Goldman, associate professor at the Santa Clara University School of Law in California and director of the High Tech Law Institute there.

"Even so, the fact the judge raised this issue unprompted is a sign that judges want to clear their dockets of low-merit cases, even if they have to jumpstart that inquiry themselves," Goldman added.