Righthaven suit dismissed as judge rules blogger's quotes were 'fair use'

Righthaven has been heavily criticised for its business model, which is to spot the use of a newspaper's material on the web then acquire the rights to that article and sue the blogger who posted the material.

Critics have said that the company is motivated by profit rather than by a desire to protect the rights of the newspaper, and that many individuals who are targeted cannot afford to defend their rights in court.

One blogger who initially resisted out-of-court settlement with Righthaven was estate agent Michael Nelson, who trades as Realty One Group. He had posted an eight-sentence portion of a 30-sentence article from the Las Vegas Review Journal, which works with and is reportedly a shareholder in Righthaven.

He published the material in May. Righthaven had the work transferred from the Journal in May and in June received a copyright registration for the work and sued Nelson.

One of the lawyers acting for people targeted by Righthaven told OUT-LAW Radio recently that most people who receive the demands settle with the company because, despite there being legitimate defences to the publishing of excerpts, they cannot afford to make those arguments in court.

Nelson did not settle and asked the US District Court for the District of Nevada to dismiss the suit on the grounds that his publishing of the material came under the 'fair use' exemption to US copyright law.

The fair use exemption allows some uses of material, such as for the purposes of news reporting, and declares that it cannot be copyright infringement.

The Court has backed Nelson's request and dismissed the case, refusing it permission to proceed to a full trial. It said that though the article partially failed to clear one of the four hurdles determining whether it was fair use or not, it cleared the others and that this was enough.

"In determining if an alleged infringement is a fair use of the copyright, district courts consider several factors including: the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work," said Judge Larry R Hicks in his ruling.

He said that though Nelson's blog was partly educational it was also partly commercial, since it was designed to help him to win business as an estate agent.

"Although Nelson’s blog gathers varied information and provides it to the public free of charge, the purpose of providing that information is commercial in nature," he said. "Therefore, the  court finds that this factor weighs against the fair use of the copyrighted information."

The article quoted contained factual parts and parts outlining the journalist's commentary. Because Nelson only quoted the factual parts, this weighed in favour of the fair use exemption, the judge ruled.

Because he copied "only as much as necessary in a greater work to provide relevant factual information", Nelson's use of eight out of 30 sentences satisfies the fair use demand related to the amount of the copyrighted work copied, Judge Hicks said.

He also ruled that the publishing of a snippet of one article was unlikely to have a major effect on the market for the Las Vegas Review Journal material, especially since Nelson directed readers to the newspaper's own website.

"The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article," said the ruling. "Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work."

"Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson’s use supports a finding of fair use," said Judge Hicks.

Righthaven's demands are initially up to $150,000 per infringement, but Michael McCue of Lewis and Roca, who is acting for some of the people sent those demands, said that demands can fall to $2500.

"My personal opinion regarding the motives are that they are simply trying to make money, based on alleged copyright infringements from individuals who do not know better and in many cases do not have the means to defend themselves," he told OUT-LAW Radio last month. "There have been a number of individuals who have contacted us who could not afford to even pay a $1,000 or $2,000 for initial representation and can even scrape up that amount of money to pay to Righthaven to try to settle a case."