We recently wrote on the copyright enforcement lawsuits brought by Righthaven LLC, the intellectual property enforcement firm, and in particular, on a pending ruling on the issue of fair use in the Righthaven litigation against the Center for Intercultural Organizing (CIO).

On Friday, March 18, Judge James Mahan, who is presiding over Righthaven LLC v. CIO in the District of Nevada, announced that he would dismiss Righthaven's lawsuit on the grounds of fair use. The lawsuit involves the posting of an entire article from the Las Vegas Review-Journal on the organization's Web site. According to a news article in the Las Vegas Sun, Judge Mahan indicated the following in a ruling from the bench:

  • that the CIO was using the article for educational purposes and not to raise money;
  • that the article was primarily factual as opposed to creative;
  • that its use did not harm to the market for the article.
  • that Righthaven was remiss for not notifying CIO in advance of the lawsuit.
  • that the copyright in the article, once transferred to Righthaven by the Las Vegas Review-Journal, was entitled to lesser protection under the Copyright Act.
  • that the use of the copyright in the article (presumably as the basis for a lawsuit) has a chilling effect on free speech and doesn't advance the purposes of copyright.

In response to the statement by Righthaven's attorney that the company intended to appeal, the judge commented, according to the Las Vegas Sun article: "I realize this is going to be appealed. I tell litigators 'that's why God created San Francisco," (i.e., the location of the U.S. Court of Appeals for the Ninth Circuit.

See Steve Green, "Righthaven loses second fair use ruling over copyright lawsuits," (Las Vegas Sun, March 18, 2011), available here.