Tuesday, Feb. 15, 2011 | 6:50 p.m.
Las Vegas copyright enforcement company Righthaven LLC is asking the 9th U.S. Circuit Court of Appeals to overturn an order dismissing one of its lawsuits on fair use grounds.
Righthaven, which sues over Las Vegas Review-Journal and Denver Post material, has since March sued at least 238 website operators and message-board posters, charging they displayed on their websites material from those newspapers without authorization.
In October, the litigation campaign suffered a setback when U.S. District Judge Larry Hicks in Reno dismissed a lawsuit against Las Vegas real estate agent Michael Nelson.
Hicks found the online posting by Nelson of the first eight sentences of a 30-sentence Review-Journal story didn’t amount to copyright infringement as it was protected by the “fair use” doctrine .
This ruling caused Righthaven to alter its litigation strategy to limit its lawsuits to entire stories, photos and graphics — rather than partial stories — that were reproduced without authorization.
After Nelson’s motion for dismissal was granted, attorneys for codefendant Realty One Group asked the court to set aside a default that had been entered against it, and this was granted without opposition by Righthaven.
The court also dropped the lawsuit against a third defendant, David Tina, who apparently was never served with the lawsuit.
On Feb. 8, the court clerk entered judgment in favor of all three defendants against Righthaven, clearing the way for Righthaven to appeal.
In a court brief explaining why it didn’t oppose that the default be set aside against Realty One, attorneys for Righthaven said “Righthaven strenuously maintains the court erred in dismissing Mr. Nelson from this case by finding his infringing conduct was protected by the defense of fair use.”
Nevertheless, “Realty One is equally entitled to dismissal” based on the ruling in favor of Nelson, they said, acknowledging “Righthaven’s position may seem unusual given the amount of unwarranted criticism that has been directed toward it in various court filings, newspaper articles and Internet postings.”
The actual issue appealed is the final judgment in favor of the defendants on Feb. 8, which was based on Hicks’ Oct. 19 ruling in favor of Nelson.
It’s unknown when the appeals court will schedule a hearing on Righthaven’s appeal.
The appeal comes as Righthaven faces a second potential dismissal by another federal judge involving an entire Review-Journal story that was posted on the website of the Center for Intercultural Organizing in Portland, Ore.
The appeal also comes as four Righthaven defendants — two represented by attorneys for the online free speech group the Electronic Frontier Foundation — press counterclaims against Righthaven and Review-Journal owner Stephens Media LLC.
An affiliate of Stephens Media has invested in Righthaven.
Those counterclaims could yield additional rulings on contentions by Righthaven that its no-warning lawsuits are necessary to deter widespread online infringement of newspaper material and contentions by several defendants that Righthaven is abusing the copyright law and that the Review-Journal and the Denver Post are unfairly using the court system to enforce copyrights because they encourage the online sharing of their material.