Righthaven May Find Unlikely Help in Fair Use

PASADENA, Calif. (CN) - With its much maligned business model on the line, Righthaven urged the 9th Circuit to revive its copyright claims over news articles that appear without permission on small blogs.

Labeled a "copyright troll" by fair-use advocates, Righthaven filed more than 250 suits against bloggers after supposedly buying up the rights to the articles and photos published by various news outlets.

Steven Gibson, an attorney with Dickinson Wright, founded the company in 2010.

A year later, U.S. District Judge Roger Hunt made a crucial finding while looking at Righthaven's claims against the political website Democratic Underground.

This site had posted an article from the Stephens Media-owned Las Vegas Review-Journal, and Righthaven claimed that its Strategic Alliance Agreement with Stephens empowered it to file suit.

Hunt concluded in June 2011, however, that the agreement did not give Righthaven actual ownership rights to any of the newspaper's copyrights.

Hundreds of similar actions from Righthaven are in jeopardy, but the first two to face an appeal before the 9th Circuit concern Review-Journal articles posted by Thomas DiBiase on Nobodycases.com and by Wayne Hoehn on Madjacksports.com.

Righthaven had tried to satisfy its claims against DiBiase by taking over the blogger's website, which the former prosecutor has dedicated to "no-body" murder trials where the victim's body has not been found. A federal judge shot this maneuver down in April 2011 and granted the blogger summary judgment two months later.

At the consolidated appeals hearing last week, a three-judge panel seemed skeptical that the Stephens agreement gave Righthaven standing to pursue its claims.

Echoing Hunt's findings, Judge Stephen Trott said that the agreement appeared to give Righthaven a right to sue, rather than actual copyright ownership.

Based on the 9th Circuit's 2005 ruling in Silvers v. Sony Pictures Entertainment, however, "only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement."

Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, compounded this point while arguing for DiBiase.

"You can't transfer the bare right to sue," Opsahl said.

Since the agreement did not transfer copyright ownership from Stephens, Righthaven does not have leg to stand on, he added.

He claimed that Righthaven's claims simply represent it trying to have "its cake and eat it, too."

Hoehn's lawyer, Marc Randazza, meanwhile called it unprecedented for Righthaven to assert copyright over article reported to serve debate in an Internet forum.

In Hoehn's case, the blogger had posted a News-Journal editorial about public employee pensions.

Judge Richard Clifton asked how Hoehn had transformed the article to qualify for fair-use protections.

"What if I copied [U.S. Supreme Court] Justice Sotomayor's book into a blog post and invited people to comment on it?" Clifton asked.

When Randazza emphasized consideration of the length of the posted work, Clifton shot back: "How many paragraphs is too many?"

Trott warned Randazza that he should "be careful" what he asked for, noting that the appeals court could feasibly find that Hoehn's reposting was not fair use.

Randazza countered that the court was looking at the transformation issue "too narrowly," and argued that his client had only been debating an "opinion based article."

"Frankly, this is the only time I've ever seen a case in which the poster of the article was even accused of being liable for a copyright infringement by starting a discussion and debate over an article," Randazza said. "This just doesn't happen."

Arguing for Righthaven, attorney Erik Syverson said that Randazza's "version of reality" would allow anyone to start a website, then use a forum to cut and paste copyrighted material.

"The fair use argument is strongly in our favor here," said Syverson, of Miller Barondess in Los Angeles.

Judge Diarmuid O'Scannlain also sat on the appellate panel.

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