In Righthaven LLC v. Jama and Center for Intercultural Organizing, 2011 WL 1541613 (D. Nev. April 22, 2011), on a summary judgment motion, the court found use of an entire news article to be fair use. Righthaven is a notorious copyright troll. II. Legal Standard
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996); Fed.R.Civ.P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir.2002) (articulating the standard for authentication of evidence on a motion for summary judgment).
The court may “[a]fter giving notice and a reasonable time to respond ... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.” Fed.R.Civ.P. 56(f). Here, the court has invoked subdivision (f) and given the parties a reasonable time to respond to the order to show cause. Although the plaintiff has requested discovery, noting that the party against whom summary judgment is granted must be “on notice that she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds that further discovery is unnecessary, as the court already possesses enough information to rule as a matter of law on the issue of fair use.
III. Fair Use Analysis
A plaintiff must satisfy two requirements to present a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). However, even where a plaintiff has alleged a prima facie case of copyright infringement, the defendant may refute the claim if the defendant has engaged in a fair use of the material.
The fair use doctrine is an affirmative defense to a claim of infringement, which protects certain uses of a copyright. The court considers four factors to determine whether the use of a copyrighted work is fair: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir.2007) (internal citations omitted).
“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Los Angeles News Serv. v. KCAL–TV Channel 9, 108 F.3d 1119, 1120 (9th Cir.1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion—that the alleged infringement qualifies as fair use.
Righthaven, LCC v. Jama L 1541613, 1 -2 (D.Nev.,2011)
In analyzing the first prong, the court compared the original use: news reporting with the allegedly infringing use: education, and found the use to be transformative based on these different purposes. The court found the use to be non-commercial.
Second, the court found the nature of the copyrighted work to be an "informational work" entitled to a lower level of copyright protection, a factor weighing heavily in favor of fair use.
Third, the work was used in its entirety, but the defendant did not delete plaintiff's copyright information. The court found this to favor neither party.
Fourth, the court found it to be a non-commercial use, and that the plaintiff thus had the burden of affirmatively showing a likelihood of market harm. Plaintiff failed to allege that a market exists.
Coloring the court's analysis is Righthaven's position as a licensee hired just for the purposes of suing. Although this decision does not spell it out, Righthaven is not a traditional newspaper. Thus the court drew a distinction in the fourth prong that might have turned out differently had the newspaper brought the suit.
Righthaven has attracted a lot of attention as a copyright troll. An informational site on Righthaven here.
Wikipedia on Righthaven here.
A site for Righthaven victims here.
EFF's activities to protect troll victims here.
Mike Masnick at Techdirt has the best ongoing coverage of everything Righthaven, some links below.
Righthaven Demands Servers Of Website Sued, Even After Court Rejects Demands For Domain
Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
Another Loss For Righthaven: Court Explains That Its Demand For Domain Names Is Silly
Righthaven Tells Judge Handling All Its Colorado Cases That He's Wrong
Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Monday, May 02, 2011
Copyright Troll Clobbered: Judge Finds Use of Entire News Article Fair Use
Labels: copyright infringement, copyright law, copyright trolls, fair use doctrine, news reporting, righthaven, techdirt
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.