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January 28, 2015

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Judge questions whether nonprofit’s Web posting harmed R-J

A judge was skeptical Tuesday about claims the Las Vegas Review-Journal was harmed when an entire Review-Journal story was posted without authorization on an Oregon nonprofit's website.

U.S. District Judge James Mahan commented on those claims during a hearing he called in which Righthaven LLC, the Review-Journal's copyright enforcement partner, was ordered to show cause why its lawsuit against the nonprofit should not be dismissed on fair use grounds.

Mahan didn't rule on the fair use issue Tuesday.

After an attorney for Righthaven endured tough questioning from Mahan about whether there were any issues that needed to be investigated before the hearing could proceed, Mahan gave Righthaven until Jan. 7 to file a list of issues that Righthaven feels are subject to discovery, or evidence-gathering.

The case at issue Tuesday was a Righthaven lawsuit filed Aug. 5 against the Portland, Ore., Center for Intercultural Organizing (CIO), which assists immigrants and acknowledges it posted without authorization a 33-paragraph Review-Journal story about immigrants' relationship with Las Vegas police.

The Review-Journal was credited as the source of the information on the CIO website.

Mahan opened Tuesday's hearing by noting that Righthaven, which has filed at least 195 copyright infringement lawsuits since March, settles most of its cases.

"Fair use seems like an overriding issue," Mahan said. "These cases typically get settled and the fair use doctrine never gets properly raised. I think it needs to be addressed."

Shawn Mangano, a Las Vegas attorney representing Righthaven, said it would be premature for Mahan to dismiss the lawsuit against the Oregon center at this stage of the litigation since there has been no discovery.

An issue that needs to be investigated is how the Center for Intercultural Organizing's unauthorized use of the story affected the market value of the story, Mangano said.

Mahan, however, repeatedly suggested he does not see that as an issue of material fact.

"You really think the defendants are competing with the Review-Journal and making a ton of dough on this?" Mahan asked.

Mahan said the center benefited from the story as it furthered the center's educational mission, but he suggested the center's website isn't diverting traffic from the Review-Journal website.

A person reading the story on the center's website "may have never heard of the Review-Journal before reading that article," the judge said.

"It's a totally different market," he said.

Mangano, however, said issues that need to be investigated include how much traffic the Oregon center's website generates and whether it received donations as a result of its posting of the Review-Journal story.

The Review-Journal and Righthaven were harmed, Mangano said, because people "are going to read the story on their (CIO) website, not on the Review-Journal's," where they will be exposed to advertising and other Review-Journal stories.

But with Righthaven now owning a copyright to the story, Mahan said: "There is no market for the copyrighted work. You are not publishing it. You are not operating a newspaper."

"Righthaven only sues people, apparently," Mahan said.

Noting the story at issue is still available for free on the Review-Journal website, Mahan asked: "Are you suing the Review-Journal?"

Mangano said there's probably a provision in the copyright transfer agreement that allows the Review-Journal to continue to display on its website its own story.

Separately, Righthaven objected to the participation in the case of professor Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California-Berkeley.

Schultz filed a friend of the court brief listing reasons the suit could be dismissed on fair use grounds and also arguing the Review-Journal had encouraged the online posting by the Oregon center by suggesting that readers share its news online.

Righthaven complained that Schultz made "numerous, unsupported factual assertions" in his brief.

The company said that while Schultz is participating "apparently on the basis that he is a citizen concerned about the application of the Copyright Act," he's really biased against Righthaven since he's a former senior staff attorney for the Electronic Frontier Foundation (EFF) of San Francisco and the EFF assisted in his participation in the Center for Intercultural Organizing case.

"Schultz is far from a 'friend of the court.' Rather, he is the proverbial wolf in sheep's clothing who seeks to mislead this court's fair use analysis for the benefit of EFF's defense of other cases now pending and future cases yet to be filed," Righthaven complained.

The EFF is connecting Righthaven defendants with volunteer attorneys, is representing two Righthaven defendants as a public service and has filed counterclaims charging the Righthaven litigation campaign is an abuse of the court system and the Copyright Act since, the EFF asserts, the lawsuits are frivolous and are filed without warning as part of a settlement shakedown scheme.

Righthaven, the Review-Journal and the Review-Journal's owner, Stephens Media LLC, however, argue the lawsuits are necessary to prevent infringement of newspaper industry copyrights.

Mahan sided with Schultz on Tuesday, ruling he could make oral arguments in the case although the hearing was adjourned before Schultz had the opportunity to do so. Mahan said it's not unusual for advocates of various causes to appear as friends of the court.

Also, Righthaven this week filed at least three more copyright infringement lawsuits. The latest to be sued were:

-- Daniel Benedix and Tucson DUI News, accused of posting Review-Journal material without authorization at

-- Motown Muscle Inc., allegedly associated with the website, accusing of posting Review-Journal material. Motown Muscle appears to be part of the Musclecar Club in Detroit.

-- Charles Coker, allegedly associated with the website and accused of posting Review-Journal material.

A message for comment was left with Motown Muscle. Benedix and Coker could not be located for comment.

Righthaven is a partnership between Las Vegas attorney Steven Gibson and an affiliate of Stephens Media.

The Righthaven lawsuits involving Review-Journal and Denver Post material are a departure from the past practice of the Review-Journal and the Post of dealing with copyright issues out of court. Most newspapers still don't sue infringers, preferring instead to ask or demand that copyright-infringing material be removed and/or be replaced with links.

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  1. Something that has recently been brought up, how can Righthaven state they have been harmed by someone posting the article since Righthaven is not in the business of publishing anything and does not derive their income from articles being published?

    Now I agree stealing articles and posting them on your web site is not legal and should not be done but I think Righthaven is nothing more then a shake down company. They don't make money from the proper use of articles, they make money by threatening people in with court actions.

  2. I've actually canceled my RJ subscription.
    Yes, they have a right to protect their copyrights. However, Righthaven is the bazoka at a water gun fight. 99% of violators would immediately comply with a take-down request.
    This is just a way to profit without adding anything of value to society.

  3. "Righthaven only sues people, apparently," Mahan said.

    I like this judge!

  4. Any reasonable person without a vested interest in the outcome will say the same about ALL of these frivolous suits.
    Stevie & Shermy and their little shakedown cruise has hit a sandbar.

  5. riponjr, Websites can use "page views" or "clicks" as a means to see how much traffic a website is getting and thus report back to the advertisers to let them which heavily used areas cost this amount, or how cheap a specific area is for another ad.

    That's the sort of thing I think righthaven is inherently trying to say. I think google adsense works in this sort of way.

    On the other hand, they may be talking about a dodge truck ad on the side of the website that the reader now may never see because they are viewing it from another source. Righthaven will claim that this unauthorized usage of their article has cost them and their advertisers $25,000 dollars for the cost of a car. Lawyers love thinking this way.

    But couldn't these other sources argue that they are now using their own server space and bandwidth to host this stuff, saving those maintenance bills from incurring onto LVRJ?
    "A person reading the story on the center's website "may have never heard of the Review-Journal before reading that article," the judge said."

    This was exactly what I said months ago in the comment section. I'm glad a judge has raised this issue. If anything, LVRJ should be thankful some new outside source is viewing their article and maybe, they will see this newspaper as a viable source of UPCOMING and NEW information. A quick letter to the websites who copied the article wrong will get them on the straight and narrow, and NOW, you have allies who post the stories the right way.

  6. Page views and clicks? Targeting, Geo Zoning? Google Ad Sense is about SEM, key word advertising. Don't talk about what you don't understand!!! Your statements are not apples to apples, there oranges to watermellons. You know nothing about Digital Marketing. Advertisers need a measuable ROI from there advertising. Adverisers buy on a cpm basis (cost pr 1000) and a number of impressions (# of ads delivered)...No one buys a car from the rj site, or any other site, they just hyper link (click thru) to a website and thus leave the rj site. They may click on an ad but no ever would buy a car from the rj site, period!!!!!That is ridiclulous!!!!

  7. Damage to the RJ is caused by the RJ.

  8. Since Righthaven supposedly owns the copyright, and they are the entity bringing suit, one would think that they would have to show how they (not the RJ or any other body) are specifically harmed by this so called infringement.

  9. To me it's very simple: Sherm was fired, Mitch was demoted and their legacy is that which Samuel Beckett made famous: Absurdity. Personally, I would prefer, were I a journalist, to be remembered as a journalist, rather than a litigant. Both of these top guys at the RJ got what they deserved, not that people didn't violate the law, but rather that the newspaper, if that's what you can call it, took an approach that was almost literally violent and malevolent.

  10. My New Year's resolution is that this sand bar turns out to be a tank (a front-line fighter)!

    Go Judge James Mahan go!

  11. > It will be interesting if Righthaven appeals to the 9th District and if needed beyond that.

    that blows the crap out of the financial model though. I mean to say it's a lot easier to blow through 75 suits at $5K a pop to settle than run up against the the likes of those who fight back --- some of them serious players who are playing for keeps.

    if the drudge things goes all the way look out righthaven --- it'll be lights out for you. (use your browser to figure out why).

    And while you might think the judge is not performing to your expectation I believe it comes down to the judiciary not wanting to be used as a tool of business. At least you know what this judge is thinking when he says, "Righthaven only sues people, apparently."

    dunn know sarge --- this isn't the only judge who's asking less than flattering questions of righthaven. time will tell --- I guess.

  12. "Essentially, this judge is totally ignoring DCMA." Federal Judges can do pretty much what they want. What's most interesting to me, and odd as well, is that the RJ and Righthaven continues down this path. I read somewhere recently that the recovery for Righthaven has been around $300k, which is what the RJ "invested." It's been going on a year now and Righthaven just can't be profitable on those numbers.

    Frederick, and I assume Stephens Media, said that they were going to make a point. It seems to me they did so at a great financial cost, as well as reputation. I've always contended that take down notices would have worked in most cases and there's data to show that it's a far more cost effective way to go.

    It also seems to me that if you make your point, get out, but these guys remind me of the line from the movie "From Dusk 'til Dawn:" "You're such a big loser you don't even know when you won."

  13. Great coverage on this ongoing story. I thought they didn't like "lawsuits" over there at Brand X Newspaper? They didn't like the endoscopy clinic verdicts.

  14. Taken to it's extreme, Righthaven's objection to having RJ content quoted in its entirety could be seen as a desire to not have their material widely read. But then, why publish it in the first place? And why allow links to their stories?

  15. > why publish it in the first place?

    a question for the ages -- Reichhaven or not.