Wednesday, February 6, 2013

9th Circuit Panel Sounds Skeptical of Righthaven's Claims

February 6, 2013 Ars Technica reports on the oral arguments before the 9th Circuit Court of Appeals:
[Righthaven attorney] Syverson tried to argue that the deal between Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case, and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights, or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

While one can't be 100 percent sure of the result of a case based on judges' comments, the questions in this case were very critical of Righthaven. It would be a real shocker if Righthaven was found to have standing to sue.
The panel was skeptical of the "we can copy the whole article and still be fair use" position that the district court held in Righthaven v. Hoehn, and I confess that I share that skepticism, but it is still the case that news articles are intrinsically worth very little, and since the Las Vegas Review-Journal articles in question were not behind a paywall of any sort, and are of essentially no economic value individually, there is a good case that the actual damages to the copyright owner (which was not Righthaven) were measured in pennies.  The DMCA's $75,000 per violation statutory penalties were not intended for nearly worthless pieces of news, but for music and video recordings, which are actually quite valuable.

In any case, since Righthaven did not own the copyrights that it falsely claimed that it owned when demanding $75,000 from defendants, the fair use argument is irrelevant.  Righthaven lacked standing to file the suit.

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