In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC.
The case began when the online political forum Democratic Underground—represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers—was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper's website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.
The Court dismissed Righthaven's infringement case because it did not own the article, but Democratic Underground’s counterclaim against Stephens Media continued. After initially attempting to defend the bogus assertion of copyright infringement, Stephens Media has now conceded it was incorrect.
"I knew the lawsuit was wrong from the start, and any self-respecting news publisher should have, too," said Democratic Underground founder David Allen. "I'm glad that they have finally admitted it."
"This concession comes after more than a year of needless litigation," said EFF Senior Staff Attorney Kurt Opsahl. "Stephens Media never should have authorized Righthaven to file this suit in the first place, and should never have wasted our client's and the court's time with its attempts to keep Righthaven's frivolous claim alive for the last year."
The original lawsuit against Democratic Underground was dismissed earlier this year, when Judge Hunt found that Righthaven did not have the legal authorization to bring a copyright lawsuit because it had never owned the copyright in the first place. Righthaven claimed that Stephens Media had transferred copyright to Righthaven before it filed the suit, but a document unearthed in this litigation—the Strategic Alliance Agreement between Righthaven and Stephens Media—showed that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the newspaper's case at its own expense in exchange for a cut of the recovery. In addition to dismissing Righthaven's claim, Judge Hunt sanctioned Righthaven with fines and obligations to report to other judges its actual relationship with Stevens Media.
Righthaven has filed hundreds of copyright cases based on its sham copyright ownership claims. Despite several attempts by Righthaven and Stephens Media to re-write their sham Strategic Alliance Agreement, half a dozen judges have ruled against the scheme to turn copyright litigation into a business.
"This is a hard fought and important victory for free speech rights on the internet," said Laurence Pulgram, the partner who led the team at Fenwick & West LLP in San Francisco. "Unless we respond to such efforts to intimidate, we'll end up with an internet that is far less fertile for the cultivation and discussion of the important issues that affect us all."
Kurt Opsahl, Senior Staff Attorney
Electronic Frontier Foundation