Goldman, a critic of Righthaven's business plan that has been criticized as involving frivolous lawsuits and settlement shakedowns, added: "Putting aside the procedural issues, the court's message to Righthaven was clear: the judge cut some procedural corners because Righthaven's lawsuits -- especially this case -- are bogus."From what I have read, yes, the question of what constitutes fair use is a defense at trial. But I think that Prof. Goldman is right: the judge recognizes these suits for what they are, and decided that it was time to close the door before forcing the defendant to spend a pile of money in discovery motions. That's part of why we settled--discovery runs up the meter, making it so expensive to defend yourself that it is cheaper just to give in.
There are a lot of criticisms of discovery (which is apparently much more available and abused as a fishing expedition in American law than in other places whose laws are derived from England), but the incredible amount of money that gets spent on discovery is something that does not get enough attention.
Unfortunately, the defendant in this case had already settled with Righthaven before the judge handed down this dismissal. I do hope, one of these days, some lawyer lets Steve Gibson find out what it is like to waste vast quantities of money and time dealing with a trivial dispute. You know: something like, "Your cat pooped on my lawn! I'm suing you for $300,000! Settle now for $10,000, or I will make you spend the next year proving that:
1. You have a legal right to own that cat.
2. That it isn't actually an Arabian sand cat that was illegally imported.
3. That your cat isn't carrying feline leukemia.
4. That it is a real cat, and not a robotic device that you created just to pollute my lawn.