Fourth Righthaven copyright lawsuit appeal dismissed

Copyright lawsuit filer Righthaven LLC of Las Vegas saw another one of its appeals dismissed Wednesday after Righthaven apparently abandoned the case.

A deputy clerk at the Ninth U.S. Circuit Court of Appeals in San Francisco dismissed Righthaven’s appeal of a 2010 ruling finding Las Vegas real estate agent Michael J. Nelson was protected by fair use in posting part of a Las Vegas Review-Journal story on his commercial website without first gaining permission from the R-J to do so.

Since March 2010, Righthaven has filed 275 no-warning federal lawsuits over alleged infringements of material from the Las Vegas Review-Journal and the Denver Post.

Its lawsuits stopped last summer after a series of setbacks in which judges found it lacked standing to sue or defendants were protected by the fair use doctrine of copyright law.

In dismissing the appeal, the clerk noted Righthaven’s opening brief was due Feb. 10 but was never filed.

This lifts to four the number of Righthaven appeals dismissed by the Ninth and the 10th U.S. Circuit Courts of Appeals since Dec. 28, after Righthaven failed to prosecute them.

Righthaven claims to have run out of cash and appears to no longer have legal representation.

Lately it hasn’t been represented in court during hearings and has been missing deadlines to file briefs in its cases.

Wednesday’s appeal dismissal means the fair use ruling in favor of Nelson and Realty One Group Inc. will stand.

The ruling was issued by U.S. District Judge Larry Hicks in Reno.

Hicks found the online posting by Nelson of the first eight sentences of the 30-sentence Review-Journal story didn’t amount to copyright infringement.

The ruling came as a surprise, as copyright experts said it was unusual for a judge to dispose of such a case at such an early stage without even having a hearing on the fair use issue.

While noting Nelson used the R-J story for commercial purposes, which usually weighs against a fair use finding, Hicks found other factors weighed in his favor, including that the article was mainly factual and that Nelson’s use of the R-J story was “likely to have little to no effect on the market for the copyrighted news article.”

Hicks’ ruling caused Righthaven to alter its litigation strategy to limit its lawsuits to entire stories, columns, photos and graphics — rather than partial stories — that were reproduced without authorization.

Righthaven, however, fared no better under the new strategy as judges found it lacked standing to sue or defendants were protected by fair use, even in instances where entire R-J stories or columns were reproduced without authorization.

Separately, judges and court clerks at the Federal Court in Las Vegas this week ordered Righthaven to show cause why six of its suits against these defendants should not be dismissed for lack of prosecution:

• Howard Heys

• Danny Downey

• Brett Edmunds

• Jane Smith and Subliminalselfhypnosis.com

• Law Med Consulting LLC, Law Med Blog and Greg Stocks

• Neil G. Brommell and Holly L. Brewer.

With just 29 Righthaven cases still open at the District Court level, all in Nevada, judges and court clerks have been moving to dispose of them in batches in recent months because of Righthaven’s lack of standing to sue or its failure to prosecute the suits.

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