Eric Goldman, back from Russia, looks to have used jet-lag fueled wakefulness to do a recap of two weeks’ worth of Righthaven rulings on his Technology & Marketing Law Blog. So, if you don’t have time to read all those decisions, Professor Goldman has done you the service of knocking it all down to 1,429 words.
Okay, so if you’re too lazy to read that, here’s my recap of Goldman’s recap:
Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011):
Judge Pro followed Judge Hunt’s Democratic Underground ruling in holding that Righthaven lacked standing, and then went on also to say that Hoehn lost on fair use. Goldman is rightly skeptical of some of Judge Pro’s analysis, saying:
Judge Pro’s discussion on the second point (nature of the work) has attracted some criticism, perhaps justifiably so. It’s difficult to say that a 19 paragraph editorial doesn’t have the same level of creativity as other highly creative works. I tend not to obsess about the details of any fair use analysis given its nature as an equitable defense. The judge was twisting the analysis to make it clear Righthaven should lose. Denigrating the editorial’s creativity is an awkward way to get there, but it demonstrates that judges aren’t buying what Righthaven is selling.
Yeah, I think that’s well put. At the end of the day, you can get way too carried away with the fair-use factors. I tell my students that the most important question in fair-use analysis is just, “Does it seem fair?” (But don’t base your brief around that. It tends not to get explicit endorsement in the case law.)
Goldman notes that Righthaven has lost on fair use three times, including two cases now, including Hoehn, where the defendants re-used THE ENTIRE work. Crazy, because that’s often a show-stopper for fair use.
As a jurisprudential corpus, this fair use caselaw is becoming quite defense-favorable.
Yup. Righthaven is doing more to expand the doctrine of fair use than just about anybody in the past few years.
At this rate, if Righthaven keeps it up, they’ll do more to expand fair use than Google. And it’s hard to do anything better than Google. Especially, you would think, when you’re trying not to.
Righthaven v. Barham, 2011 WL 2473602 (D. Nev. June 22, 2011); ?Righthaven v. DiBiase, 2:10-cv-01343-RLH-PAL (D. Nev. June 22, 2011):
The same Judge Hunt who gave Righthaven the smackdown in Democratic Underground on lack of standing does it again here.
Righthaven v. Virginia Citizens Defense League, 2:10-cv-01683-GMN-PAL (D. Nev. June 23, 2011):
Judge Navarro rejects a 12(b)(6) motion to dismiss on fair use and lack of standing, but notes that the Democratic Underground decision came out after the briefs for Virginia Citizens Defense League were already in. Goldman thinks she’ll get on board eventually:
My guess is that she will be persuaded on summary judgment.
Goldman’s bottom-line assessment:
Righthaven’s business is “in tatters.” Everything’s going wrong for them all at once.
Short of completing a hail mary pass in the Ninth Circuit, there is only one possible endgame for Righthaven, and it won’t be pretty.
Yup. I agree with that too. And I’ll add that your chances of getting an appeals court to come to your aid are likely to drop precipitously when you’ve tried systematically to hoodwink judges at the trial court level by playing fast and loose with the facts.
So, that’s a little over 500 words, recapping a recap of a little over 1,400 words. Have I just showcased what is so liberating about blogging as a literary genre? Or what is so ridiculous about it?
Hmmm. Well, either way, I do feel rest assured that what I just did was thoroughly legal.