Righthaven seeks to dismiss suit over posting of R-J story

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The Las Vegas Review-Journal's copyright enforcement company no longer wants to litigate one of its more controversial cases: a complaint against the big political website the Democratic Underground.

Righthaven LLC on Aug. 10 sued the website after a message-board poster copied to the site four paragraphs of a 34-paragraph May 13 Review-Journal story about Republican Nevada U.S. Senate candidate Sharron Angle titled "Tea Party power fuels Angle."

The post by Democratic Underground website user "pampango" credited the information to the Review-Journal and included a link to the rest of the story on the Review-Journal website.

The Electronic Frontier Foundation (EFF) of San Francisco, an online freedom of speech and privacy organization, as a public service is representing the Democratic Underground in the suit pending in federal court in Las Vegas.

The EFF in September hit Righthaven and the Review-Journal's parent company, Stephens Media LLC, with an answer and counterclaim saying the post at issue was protected by the fair use doctrine of copyright law and accusing the Review-Journal and Righthaven of abusing copyright law by trying to intimidate defendants into settling what critics call frivolous, no-warning lawsuits.

Unlike most of the newspaper industry, which generally seeks to resolve copyright problems out of court, the Review-Journal this year teamed with Righthaven to file dozens of generally no-warning lawsuits against website owners and bloggers who have posted all or portions of Review-Journal material without authorization. In some cases, the material was posted by third parties like "pampango."

In moving to dismiss the Democratic Underground suit this week, attorneys for Righthaven noted one of the Nevada federal judges hearing Righthaven cases, Larry Hicks, last month dismissed one of the suits on fair use grounds -- a suit involving the unauthorized copying of eight sentences of a 30-sentence story by a Realty One Group agent.

That ruling set no precedent for the other Nevada judges hearing Righthaven cases, but it was cited in Righthaven's motion to drop both the Democratic Underground case and the EFF's counterclaim in behalf of the Democratic Underground.

"This motion represents Righthaven's sensible reaction to the intervening, immediately relevant fair use ruling recently issued by this court, all in the spirit of judicial economy," Righthaven said in its dismissal motion. "Though Righthaven firmly believes that the defendants are liable for copyright infringement, the non-holistic nature of the defendant's unauthorized textual reproduction is such that reasonable minds may disagree as to the legitimacy of a fair use defense."

Righthaven added that it "believes Judge Hicks' Realty One decision is in error."

Since Righthaven settled with one of the Realty One defendants, Michael Nelson, it can't appeal Hicks' ruling focusing on Nelson.

However, Righthaven said it expects Hicks to apply the same fair use reasoning in favor of the remaining defendant, Realty One Group Inc., and that at that time it will appeal the fair use ruling to the 9th U.S. Circuit Court of Appeals.

The EFF hasn't yet responded to the motion that the Democratic Underground case be dismissed, which is conditioned on all parties bearing their own attorney's fees.

Righthaven's motion to drop the Democratic Underground case was filed by staff attorneys J. Charles Coons and Joseph Chu; as well as outside counsel Shawn Mangano, a Las Vegas attorney who recently has started appearing in cases in behalf of Righthaven.

Separately, Righthaven last week filed its 167th copyright infringement suit in federal court in Las Vegas since March, naming as defendants TZ Holdings LLC, Robert Zumbrunnen and Peter Dierks. Righthaven says Review-Journal material was posted to their website siliconinvestor.advfn.com without authorization.

A message for comment was placed with Zumbrunnen about the lawsuit, which as usual seeks $150,000 in damages and forfeiture of the defendants' website domain name.