They call Righthaven a “copyright troll,” and a “copyright vigilante,” seeking out websites to sue for reposting online newspaper stories. But the one thing Righthaven is not: a copyright owner, according to the 9th U.S. Circuit Court of Appeals Thursday.
And without ownership rights to a copyright the firm has no right to sue for infringement, according to the court. The panel did not even get to the more fundamental issue of whether reposting of news stories is fair use.
Righthaven was founded by Las Vegas attorney Steve Gibson, who got the copyright owner to sign over rights temporarily to sue on its behalf.
In this case, the Lass Vegas Review-Journal parent Stephens Media, signed over only the right to sue to Righthaven, while retaining an exclusive license for the copy.
Judge Richard Clifton cited a story by Abraham Lincoln of a lawyer who argued a calf had five legs by counting his tail as a leg. Just calling it a leg doesn’t make it so. The same applies to Righthaven, “we conclude that merely calling someone a copyright owner does not make it so.”
Righthaven had sued two individuals for reposting Review-Journal articles without authorization on different websites, one was an opinion piece on public pensions, the other was by a federal prosecutor who blogged about murder cases and reproduced a news story on his blog.
The district court, while finding Righthaven did not have standing to sue, did rule in favor of the defendants that the reposting of articles was fair use. Righthaven, joined by the Association of American Publishers and the Recording Industry Association of America disagree. They argued that if Righthave had no standing to sue then the court should not have ruled on fair use.
The appeals panel agreed. Fair use in this internet context remains an open question.
Judges Diarmuid O’Scannlain and Stephen Trott joined Clifton in the decision.
Case: Righthaven v. Hoehn, No. 11-16751