Righthaven defends copyright suit against Oregon nonprofit

By Steve Green

Tuesday, Nov. 30, 2010 | 2:10 a.m.

As ordered by a federal judge, Las Vegas copyright enforcement company Righthaven LLC offered arguments Monday as to why one of its newspaper copyright infringement lawsuits should not be dismissed on fair use grounds.

In a surprise move this month, U.S. District Judge James Mahan ordered Righthaven to show cause why its copyright infringement lawsuit against the Center for Intercultural Organizing of Portland, Ore., and an official there should not be dismissed on fair use grounds.

Mahan's order was unexpected since attorneys for the defendants had not raised the fair use issue in their defense, instead focusing on jurisdictional grounds.

The order was also surprising given the alleged infringement: The re-posting without authorization of an entire 33-paragraph Review-Journal story involving the relationship between Las Vegas police and immigrants.

Before Mahan's order, even Righthaven's loudest critics hadn't suggested such a wholesale reproduction would survive a fair use test -- even after another judge in another Righthaven case dismissed it on fair use grounds. That case involved the first eight sentences of a 30-sentence story.

Some have speculated Mahan was motivated to put the fair use issue on the table because the Oregon group appeared to be using the Review-Journal story for educational purposes as opposed to a commercial, for-profit use.

Righthaven, in its response Monday, suggested the Center for Intercultural Organizing (CIO) doesn't qualify for sympathy or special treatment just because it's a nonprofit.

"While the defendants maintain that 'CIO's purpose is to educate and assist immigrants and refugees who have recently relocated to the United States,' the evidence plainly suggests that defendants either received, or attempted to receive, a financial gain through ownership and operation of the website. A cursory review of the website clearly depicts numerous donation banners and membership options, in which Internet visitors to the website have the opportunity to join CIO and pay required dues or to simply donate directly to CIO," Righthaven's filing said. "Thus, as Internet users viewing the unauthorized, verbatim copy of the work (story) were exposed to requests for donations to or invitations to become members of CIO, along with viewing other advertising content, there can be no dispute that the defendants' unauthorized display of the work was motivated, at least in part, by commercial gain."

Righthaven also argued the story by Lynnette Curtis at issue wasn't merely a collection of facts, but included analysis, which gives it greater copyright protection.

"Defendants, without any creative, intellectual effort or critical contributions on their part, used 100 percent of the results of Curtis' efforts for their own social and economic purposes without making any effort to obtain consent or authorization for doing so. While not as shocking to the conscious as the theft of a precious family heirloom, Righthaven asserts that defendants' infringing conduct amounts to the theft of an equally valuable item – the copyright-protected creative literary efforts of an author, which should not be excused by a finding of fair use," Righthaven's filing said.

"Here, the defendants cannot escape the fact that they engaged in the cyberspace equivalent of making a Xerox copy of the work and then used the Xerox copy to advance their own organizational purpose. Defendants did nothing to alter the content of the work or to use the work in connection with critical discussion or examination," the filing said.

Righthaven also argued the alleged infringement at issue hurt the Review-Journal since someone reading the story on the Center for Intercultural Organizing site would then have little reason to visit the Review-Journal website.

"The reader has digested the content and is in all likelihood through with the work, thereby depriving the source publication of other tangible and intangible benefits of increased readership, viewership and/or subscribership," Righthaven's filing said.

"If numerous, additional Internet users were to replicate the defendants' wholesale, cyberspace Xerox copy of the work, the market for both the work and derivatives of the work would be inevitably diminished regardless of the intentions of each individual infringer," the court filing said.

But in other Righthaven cases, defendants and their attorneys have said the Review-Journal and Righthaven can't legitimately claim economic harm when the stories Righthaven sues for remain available for viewing for free on the Review-Journal's website -- just as Curtis' story at issue in the Center for Intercultural Organizing case could be found for free on the Review-Journal site on Monday.

Righthaven defendants and critics have also said some of the sites Righthaven sued had been doing the Review-Journal a favor by creating interest in the stories at issue and prompting readers to visit the Review-Journal site. Many newspapers encourage infringing websites to replace infringing stories with links to the source newspaper, but former Review-Journal Publisher Sherman Frederick once wrote that doesn't make business sense.

"Since we've gotten tough with content stealers by using a company called Righthaven, which has developed software to effectively identify and sue copyright infringers, we've seen no erosion in revenue or traffic to our website. And, even if we did, the loss of the Review-Journal's unique content, which drives our franchise in both print and the web, would far outweigh the benefit of rewarding a content thief with a link," Frederick wrote Sept. 1.

Righthaven also asked Mahan on Monday to recognize its mission of protecting the newspaper industry from copyright theft.

"While not yet a recognized consideration under (a) fair use analysis factor, the court should at least appreciate the societal and economic benefits of protecting literary works emanating from newspapers in light of the aggregate effect of Internet-based copyright infringements. It is no secret that newspapers across the country are in distress due to declining readership numbers. For instance, in 2009, the Washington Post reported that newspaper circulation in the United States was at its lowest level in 70 years. There is even a website entitled: 'newspaperdeathwatch.com' – a site dedicated to 'chronicling the decline of newspapers,'” Righthaven's filing said.

"The decline of newspapers nationwide has coincided with the rise of the Internet, and has thus concomitantly coincided with the rise of Internet-based copyright infringements reflected by defendants' conduct. Furthermore, it is irrelevant that an online infringement of a newspaper's copyright-protected material is not always attributable to directly competing news outlets. As a recent study by the Pew Internet and American Life Project found that 'three-quarters of people who consume news online said they do so thanks to e-mails or posts on social media sites.' Thus, whether the Internet-based copyright infringement of an article published by the Las Vegas Review-Journal is committed by the Las Vegas Sun, by the New York Times or by the defendants' website, the unauthorized public display of that copyright-protected material still has the detrimental effect of diverting valuable Internet traffic away from the original source publication. As such, in addition to substantiating Righthaven's argument that infringing acts such as those committed by defendants diminish the value of the work and derivations thereof, the above circumstances also demonstrate the economic and societal benefits inherent in enforcing the rights of copyright holders in cases of Internet-based infringement," Righthaven's filing said.

Coincidentally, and perhaps challenging Righthaven's notion of "the decline of newspapers nationwide,'' Stephens Media announced plans to expand Monday by purchasing eight newspapers in Iowa.

Also, a Las Vegas Sun analysis this year of Righthaven's claims about copyright infringement hurting the newspaper industry found there was no definitive evidence to prove or disprove Righthaven's theory. Again, observers noted that some of the infringing websites actually drive traffic to source newspaper sites.

Online infringements of the type Righthaven sues over -- generally involving special-interest websites as opposed to news aggregators like Google and Yahoo -- have not been identified as a financial threat to the industry by newspaper company analysts on Wall Street.

They aren't even mentioned in the 2009 annual report or the latest Securities and Exchange Commission earnings filing by the nation's largest newspaper company, Gannett Co.

Nor were they identified as a factor in one of the nation's largest media bankruptcies, that of Tribune Co., owner of the Chicago Tribune, the Los Angeles Times and other properties.

Mahan hasn't indicated when he may rule on the fair use issue in the Righthaven case against the Oregon group, but plans to hold a hearing on it next month.