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Righthaven v. Realty One Group: Copyright Troll Righthaven Experiences Setback due to District Court’s Grant of Dismissal Motion to Defendant Claiming Fair Use

Copyright Commentary First Amendment

Righthaven v. Realty One Group, 2:10-cv-1036-LRH-PAL (D. Nev. Oct. 18, 2010)

Opinion hosted by the Las Vegas Sun

In one of the first rulings to come down in plaintiff Righthaven's many copyright suits, the District Court of Nevada granted defendant Michael Nelson's motion to dismiss. Righthaven's lawsuits are notable because they represent a new strategy in copyright enforcement. Righthaven acquires the rights to copyrighted works after discovering possible infringement; then, without the customary cease and desist letter or other warning, Righthaven brings a court action against the alleged infringers, usually obtaining a speedy settlement.

In a brief opinion granting the motion to dismiss in this case, the district court ruled that defendant's use of a portion of the copyrighted article was permitted under the doctrine of fair use. The court reasoned that the copying was fair because the defendant only copied a small portion of the copyrighted article, the defendant copied only from the factual portion of the article and not from the author’s own commentary, and the copying was not likely to have an effect on the market for the article.

The Las Vegas Sun provides additional background information and commentary. Eric Goldman critiques both the ruling and Righthaven’s business model. The ABA Journal provides a summary.

Defendant Michael Nelson posted the first eight sentences of a news story from the Las Vegas Review Journal on a real estate blog that he operates. Righthaven, after obtaining the rights in the news story from the Review Journal, sued the defendant in the District Court of Nevada. The defendant, in response, claimed fair use and asked the court to dismiss the case. The court's fair use discussion was brief but noteworthy in that it employed a typically fact-intensive analysis in the context of a motion to dismiss. The court emphasized that the defendant appropriated a brief, factual portion of the work, and provided a hyperlink to the full article containing the original author's commentary. Analyzing the effect on the potential market for the copyrighted work, the court reasoned that because the defendant did not copy the author's commentary, the copied portion “does not satisfy a reader's desire to view and read the article . . . and thereby does not dilute the market for the copyrighted work.” The court shed no further light on its reasoning or on the extent to which providing a hyperlink to the original work will enhance a fair use defense in future cases.

Because factors relevant to a fair use defense are often fact sensitive, courts rarely rely on the doctrine of fair use to grant motions to dismiss. Given that, according to the Las Vegas Sun, the case was settled soon after the ruling and thus will not be appealed, it will remain unknown whether the Ninth Circuit would have upheld the holding. Nevertheless, the decision provides some insight into how courts might treat the practice of using portions of news articles in blog posts, and how courts might protect defendants who assert fair use defenses from costly litigation by dismissing these kinds of cases early on. It is still unclear whether courts will be so generous with bloggers who appropriate complete works, or who fail to link back to the original source. Furthermore, while fair use cases are typically analyzed on a case-by-case basis, it remains to be seen whether other judges who follow Judge Hicks and rule on the issue as a matter of law will devise more fine-tuned doctrinal standards for fair use defenses in this context.

Jonathan Allred is a 2L at the Harvard Law School.