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A Kentucky man did not infringe on a copyright when he posted an entire Las Vegas Review-Journal column on a message board without authorization, a federal judge ruled today.
The ruling by U.S. District Judge Philip Pro in Las Vegas on fair use grounds is the third fair use loss for Righthaven LLC, which sues over Las Vegas Review-Journal and Denver Post material. Earlier losses over Review-Journal material involved entire and partial R-J stories.
Pro today dismissed a Righthaven lawsuit against Wayne Hoehn on grounds that Righthaven lacks standing to sue over Review-Journal material, as already determined by another federal judge in Las Vegas.
Perhaps just as significantly, Pro’s ruling found Hoehn’s post of the column on the madjacksports.com site was protected by fair use as Hoehn did not profit from the post, the column was largely informational as opposed to being creative and that Righthaven presented no evidence that Hoehn’s posting of the column harmed the market for the column.
The Review-Journal column at issue, by then R-J Publisher Sherman Frederick, was called "Public employee pensions – we can’t afford them."
"Righthaven argues that the market for the work (column) was impacted negatively because potential readers are able to read the work on the website (where it was posted) and would have no reason to view the work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the work on the website between Nov. 29, 2010, and Jan. 6, 2011," Pro wrote in his ruling.
Hoehn's attorneys, including J. Malcolm DeVoy IV and Marc Randazza of Randazza Legal Group in Las Vegas, had argued that the Righthaven lawsuit was filed "to wrest a quick settlement from Mr. Hoehn on shaky copyright infringement grounds, based upon questionable rights -- rights it purchased from the author only after Righthaven discovered Hoehn’s post, for the sole purpose of filing suit against Hoehn."
"Like other Righthaven targets, Hoehn is not a large business or well-funded entity, but an individual who posted content from the Las Vegas Review-Journal to a website in order to foster an online discussion about the article itself," their filing for Hoehn said. "This commonplace conduct permeates the Internet to a degree where Righthaven would have to file lawsuits in perpetuity to make it halt – if the law gave it a right to make it halt."
Hoehn’s attorneys suggested that far from being a rogue copyright law violator, he is "a decorated veteran of the Vietnam War" with the Silver Star, Bronze Star Medal and the Purple Heart among his awards. He's also the proprietor of Mid-States Insurance Services in Bowling Green, Ky., which has an A+ rating from the Better Business Bureau, Hoehn's filing said.
Despite last week's ruling by Judge Roger Hunt that Righthaven lacks standing to sue over Review-Journal material, Righthaven says amendments of May 9 to its lawsuit contract with Review-Journal owner Stephens Media LLC give it the definitive right to sue.
Pro, however, rejected that argument today and ruled Righthaven still lacks standing.
Pro noted Righthaven CEO Steven Gibson and Mark Hinueber, general counsel of Stephens Media, had filed court declarations May 9.
"Both Gibson and Hinueber state that it was the parties’ intent to grant all ownership rights in the work to Righthaven together with the right to sue for all past, present, and future copyright infringement," Pro wrote in his ruling.
But Pro, in looking at the details in the amended lawsuit contract, found Righthaven still lacks standing as Stephens Media still maintains too much control over the copyrights it assigns to Righthaven. Under case law, a party filing copyright infringement suits has to have exclusive ownership of copyrights and Righthaven still doesn't have that, Pro found.
"Even assuming that the May 9, 2011, clarification (to the contract) can change the jurisdictional facts as they existed at the time of the filing of the suit, it still does not correct the deficiencies with respect to lack of standing," his ruling said. "It does not provide Righthaven with any exclusive rights necessary to bring suit."
"The May 9, 2011, clarification provides Righthaven with only an illusory right to exploit or profit from the work, requiring 30 days advance notice to Stephens Media before being able to exploit the work for any purpose other than bringing an infringement action. Stephens Media has, in its sole discretion, the option to repurchase the copyright assignment for a nominal amount within 14 days, thereby retaining the ability to prevent Righthaven from ever exploiting or reproducing the work. Stephens Media’s power to prevent Righthaven from exploiting the work for any purpose other than pursuing infringement actions is further bolstered by the clarification’s provision that every exploitation of the work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media," Pro's ruling said.
"Stephens Media may obtain injunctive relief against Righthaven to prevent such `irreparable harm' and, pursuant to the clarification, Righthaven has no right to oppose Stephens Media’s request for injunctive relief. Accordingly, Righthaven does not have any exclusive rights in the work and thus does not have standing to bring an infringement action," Pro wrote.