Friday, March 18, 2011 | 4:56 p.m.
An Oregon nonprofit did not infringe on copyrights when it posted without authorization an entire Las Vegas Review-Journal story on its website, a judge ruled Friday.
U.S. District Judge James Mahan said during a hearing he planned to dismiss, on fair use grounds, a copyright infringement lawsuit filed against the Center for Intercultural Organizing (CIO), in Portland, Ore.
The lawsuit was filed last year by Righthaven LLC of Las Vegas, the Review-Journal's copyright enforcement partner that also enforces copyrights for the Denver Post.
Mahan, who last year raised the fair use issue in the CIO case without being prodded to do so by CIO attorneys, said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, the CIO didn't try to use the story to raise money and because the story in question was primarily factual as opposed to being creative.
The judge also found there was no harm to the market for the story.
"The market (served by the CIO) is not the R-J's market," Mahan said.
Mahan also found Righthaven's use of the copyright for a lawsuit gives the copyright less protection than if the Review-Journal were using it in the normal course of delivering the news.
"Here the copyright has been removed from its original context," Mahan said.
"Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit," Mahan said.
This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.
In looking at copyright case law, Mahan noted in some cases infringers had refused to stop infringing when notified by the copyright holder. That didn't happen in this case because Righthaven sued the CIO without warning and without the Review-Journal or Righthaven asking the CIO to take down the story.
"That's missing here," Mahan said.
The story at issue was a 33-paragraph Review-Journal story about immigrants' relationship with Las Vegas police. The post on the CIO website credited it to the Review-Journal.
"It's an informational work. It's more informative than entertainment," Mahan said.
This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Last year another Nevada federal judge dismissed on fair use grounds a Righthaven lawsuit over a partial story post.
Shawn Mangano, an attorney representing Righthaven, said he appreciated the judge's analysis but indicated Righthaven would appeal, just as it appealed the earlier fair use ruling. The 9th U.S. Circuit Court of Appeals has not yet ruled on the first ruling. Mangano told Mahan that Righthaven's position is that fair use is an issue for juries to decide.
Mahan said: "I realize this is going to be appealed. I tell litigators 'that's why God created San Francisco'" -- home of the federal appeals court.
"The Copyright Act is important. The First Amendment is important. You'd be remiss if you didn't run it up the flagpole," Mahan told Mangano.
Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and that if the facts were different -- for instance if the Las Vegas Sun or the Los Angeles Times published a Review-Journal story without authorization -- a Righthaven lawsuit would stand a better chance of defeating a fair use challenge.
Mahan hasn't officially dismissed the CIO case -- he directed defense attorneys to draft a dismissal order, which he'll sign if he approves of it.
The ruling does not set a binding precedent for any of the other federal judges hearing Righthaven cases, but it's likely to cause Righthaven to consider whether it wants to risk another dismissal by suing a nonprofit. For Righthaven, its biggest legal challenge at the moment appears to be a counterclaim filed by the Democratic Underground in which Democratic Underground attorneys have suggested they've found evidence undermining Righthaven's lawsuits over Review-Journal material based on allegedly "sham" copyright assignments. Righthaven has disputed that assertion.
Separately, Righthaven on Thursday filed at least its 250th lawsuit since March 2010.
The latest suit, filed in U.S. District Court for Colorado, is over the Denver Post TSA pat-down photo. This brings to at least 46 the number of lawsuits over that photo.
The latest suit was filed against Georgia companies Street Grind Entertainment Inc. and Trinity Visions Media LLC; and an individual identified as Mteteaji Carnes aka Taji Carnes; all allegedly associated with the website streetgrind.com.
A Righthaven court exhibit shows the Denver Post photo on the streetgrind.com site and that the post did not attribute the photo to the Denver Post.
The website included commentary by a "MS Apple" incorrectly suggesting the photo was taken at San Francisco International Airport and also suggesting the passenger in the photo had become sexually excited by the pat-down.
This type of commentary about the photo appears to have originated with a website called deadseriousnews.com, which as of midweek had not been sued by Righthaven.
As of Friday, the deadseriousnews.com site continued to display the Denver Post photo along with parody-type commentary suggesting a passenger was arrested by the TSA for becoming aroused during the pat-down.
As usual in its lawsuits, Righthaven demands $150,000 in damages against Street Grind Entertainment and the codefendants as well as forfeiture of the streetgrind.com website domain name. A message for comment was placed with the new defendants.
The lawsuit claims the defendants didn't have a policy in place to deter or deal with the posting of copyright-infringing content on the website.
"Defendants’ failure to institute any proactive policies intended to address the postings by others of copyright-infringing content on the website constituted and constitutes defendants’ willful blindness to copyright infringements occurring on the website," the lawsuit alleges.
Also, a Righthaven lawsuit over the Denver Post photo was closed after a confidential settlement was reached with defendant Raw Story Media Inc.