Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so…. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

– Judge Richard Clifton, writing for a unanimous panel of the Ninth Circuit in Righthaven LLC v. Hoehn.

(Additional commentary about this interesting case, after the jump.)

The Righthaven litigation has been closely followed in intellectual-property circles. Here’s some background from Ars Technica:

Righthaven was a copyright-enforcement business dreamed up by Las Vegas attorney Steve Gibson. He managed to convince the largest newspaper in Nevada, the Las Vegas Review-Journal, to let him use its copyrights to sue more than 200 mostly small-time bloggers and demand several thousand dollars apiece from them for reposting Review-Journal articles. Righthaven struck a similar deal with the Denver Post, which led to about 50 more lawsuits.

The plan went on for over a year. It included lawsuits against a cat blogger, a mildly autistic hobby blogger, and one Ars writer; but by mid-2011, Righthaven had been absolutely pounded in court. They lost a few cases on fair use grounds. Even more profoundly, Righthaven was found not to have standing to sue at all. The contract it struck with the Review-Journal didn’t transfer the whole copyright, a judge found; it merely transferred a “bare right to sue,” which is not allowable under a legal precedent called Silvers v. Sony Pictures.

And that’s the ruling just affirmed on appeal by the Ninth Circuit. The opinion, authored by Judge Clifton and joined by Judge Diarmuid O’Scannlain and Judge Stephen Trott, relies heavily on Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 890 (9th Cir. 2005) (en banc) (holding that, under § 501, only a party with an ownership interest has standing to sue).

The Righthaven ruling is generally good news for blogger and new-media types. But note that the panel vacated the district court’s ruling on fair use, in which the district court held that even if Righthaven had standing, the defendant’s conduct in this case constituted fair use. The Ninth Circuit expressed disapproval for such “hypothetical jurisdiction.”

Congratulations to Marc Randazza, the noted First Amendment advocate (who represents ATL in various proceedings), and to Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation, who argued on behalf of the defendants in this case. They’ve scored a victory not just for their clients, but for free speech on the web.

Righthaven LLC v. Hoehn [U.S. Court of Appeals for the Ninth Circuit]
Remember Righthaven? On appeal, copyright troll looks just as bad [Ars Technica]


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