SAN FRANCISCO (CN) - Concern over the potential chilling effect on fair use led Google to intervene in the 9th Circuit showdown between an Oregon nonprofit and the beleaguered copyright enforcer, Righthaven.
Claiming to have bought the rights to various articles and photos published by the media, Righthaven has filed more than 200 lawsuits against bloggers and websites that republish those materials.
Leading the charge in dismissing most of those cases, U.S. District Judge James Mahan ruled in March 2011 that the fair-use doctrine protected publication of a Las Vegas Review-Journal article by the Center for Intercultural Organizing, an Oregon nonprofit.
As the parties prepare for an appeal to the 9th Circuit, Google on Friday called Righthaven's case a "misguided construction of the fair-use doctrine."
The company has not taken a position on merits of the case, but "it has a strong interest in the careful and considered application of the fair-use doctrine," according to Google's amicus brief, authored by Fenwick & West attorney Andrew Bridges in San Francisco.
"Google urges the court to reject Righthaven's false assertion that there is 'almost a per se pronouncement' in the Ninth Circuit precluding the application of the fair use doctrine when an entire work has been copied," the . That simply is not the law, nor should it be," Google's brief says. "Indeed, adoption of any such per se rule would wreak havoc on businesses like Google, whose ability to offer innovative and useful services to the public depends on the adaptability of the fair use doctrine."
"Indeed, with modern technology developing at an unprecedented pace, the need for flexibility in the fair use analysis is more crucial than ever Righthaven ignores the fact that the Supreme Court, this court, and numerous courts outside this Circuit have expressly found fair use in cases involving complete copies of a plaintiff's work," Bridges wrote.
The Electronic Frontier Foundation also filed an amicus brief, calling Righthaven's lawsuits "a 'scorched earth' campaign of mass copyright infringement suits" to tap into a "gold mine" of settlement money.
Faced with orders to pay more than $200,000 in litigation costs for the entities Rigthaven has sued unsuccessfully, plus $5,000 in sanctions, the company has had to auction off its domain name, according to the foundation.
"These cases should never have been filed in the first place," foundation attorney Kurt Opsahl said in a statement issued Friday. "They are based on a sham copyright assignment, run roughshod over fair use, and have abused the legal system by forcing bloggers and web sites to pay cost of defense settlements. It's obvious Righthaven's litigation scheme has failed, and we urge the appeals court to deny Righthaven's last ditch effort to resuscitate its business model."
The Center for Intercultural Organizing is represented by James Olson and Michael Stoberski of the Las Vegas-based Olson, Cannon, Gormley & Desruisseaux. Righthaven is represented by Shawn Mangano of Las Vegas.
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