Picking Your Battles

Submitted by patentadmin on Wed, 05/18/2011 - 23:14

A wise man picks his battles or, more precisely, knows which battles to avoid. (Righthaven LLC v. Kayse Jama and Center For Intercultural Organizing)

Righthaven is the first of a new breed – the copyright troll. For the benefit of those unfortunates who somehow missed our two previous blogs (see Warning and No Response, No Comment), a copyright troll is an opportunist who “purchases” (more on this later), from newspapers, the copyrights to various news articles, especially so-called “puff pieces,” and then sues anyone egotistical and foolish enough to reprint or post them on their websites “without authorization” (trollspeak for “without paying a fee”). Righthaven has, to date, filed 207 copyright infringement suits in Nevada and 57 in Colorado.

Center For Intercultural Organizing (“CIO”) is a “non-profit organization dedicated to helping immigrants become aware of immigration-related issues in the United States.” The CIO posted on its website, in its entirety, an article discussing whether police in the Las Vegas area were targeting minorities. Righthaven – where cash apparently trumps compassion – promptly sued CIO for copyright infringement.

In retrospect, this may not have been a good decision. The trial court judge clearly took a decidedly negative view of the matter, finding that the use of the article – the WHOLE article – was a legally permitted “fair use.” First, the Court found that the use by the CIO was “transformative.” Never mind that the CIO did not alter a single word of the article, “[a]lthough the former owner [of the copyright] used the article for news reporting, the court focuses on the current copyright owner’s use, which, at this juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the article to educate the public is transformative …”

Next the Court found that the accused use was noncommercial, despite the defendants’ solicitation of donations on their website. “[N]o reasonable jury could conclude that the defendants used the disputed article for a commercial purpose …”

Warming to his subject, the Court then addressed the nature of the disputed article, “… it is an informational work, which readily lends itself to a productive use by others and, thus, deserves less protection than a creative work of entertainment.”

Coming at last to the awkward fact that the CIO had copied ALL of the article in question, the Court noted that, “… under some circumstances, a court may determine that a use is fair even where the protected work is copied in its entirety;” then went on to hold that “although the defendants posted the work in its entirety, the amount used was reasonable in light of the purpose of the use, which was to educate the public about immigration issues. [and] it would have been impractical for defendants to cut out portions or edit the article down.”

Finally, having found that the defendants’ use was non-commercial, the Court determined that the plaintiff had the burden of proving that the use “materially impaired the marketability of the work which is copied.” This, the plaintiff had failed to do. “[T]he plaintiff has failed to allege that a ‘market’ exists for its copyright at all, and the court declines to simply presume the existence of a market.”

Having expeditiously dispensed with the need for a trial, the Court granted summary judgment in favor of the CIO.

Interestingly, this decision came a month after the unsealing, in another copyright case brought by Righthaven, of the form of copyright assignment routinely utilized by Righthaven, whereunder the original copyright owner retains the rights to reproduce and distribute the subject works. As opined by one commentator, “[i]t appears that the only thing assigned to Righthaven is the right to sue under the copyrights. The argument is being made that Righthaven isn’t really the copyright owner because all of the economic value of the copyrights is maintained by [the original copyright owner].”

The newly disclosed agreement has already prompted the defendants in a different Righthaven suit to argue that Righthaven has “perpetuated a sham on the Nevada courts by claiming in its suits that it owns the copyrighted works” and to move for dismissal.

Undaunted, Righthaven has vowed to appeal the CIO decision and has doubled its bet by filing six new copyright infringement suits – all in Nevada.

THE LESSON TO BE LEARNED: Consider carefully before suing a sympathetic defendant, especially if you’re a troll.

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