Righthaven LLC v. Center For Intercultural Organ, et al

Filing 11

Submitted (ECF) Opening brief for review. Submitted by Appellant Righthaven LLC. Date of service: 11/22/2011. [7976816]--[COURT UPDATE: Attached corrected brief. Resent NDA. 11/23/2011 by GD] (SAM)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 11-16358

RIGHTHAVEN LLC,
Appellant
v.
CENTER FOR INTERCULTURAL ORGANIZING, and KAYSE JAMA,
Appellees

APPELLANT RIGHTHAVEN LLC’S OPENING BRIEF
Appeal from the United States District Court for the District of Nevada
Case No. 2:10-cv-01322-JCM-LRL
SHAWN A. MANGANO, LTD.
Shawn A. Mangano, Esq.
Nevada Bar No. 6730
8367 West Flamingo Road, Suite 100
Las Vegas, Nevada 89147
Phone: [phone]
Fax: [phone]
Counsel for Appellant Righthaven LLC

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Appellant Righthaven LLC, a Nevada limited-liability company, files this
statement identifying parent corporations and publicly held companies that
own 10-percent or more of its stock:
None.
Dated this 22nd day of November, 2011.
SHAWN A. MANGANO, LTD.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
Nevada Bar No. 6730
[e-mail]
8367 West Flamingo Road
Suite 100
Las Vegas, Nevada 89147
Attorney for Appellant
Righthaven LLC

TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION ...................................................... 1

II. ISSUES PRESENTED FOR REVIEW .................................................. 1

III. STATEMENT OF THE CASE ............................................................. 2

IV. STATEMENT OF RELEVANT FACTS .............................................. 4

V. ARGUMENT SUMMARY .................................................................... 8

VI. ARGUMENT ......................................................................................... 9
A. The District Court Erred in Granting Sua Sponte Summary Judgment
by Finding The Defendants’ Alleged Infringing Conduct Constituted Fair
Use Despite No Discovery Having Been Conducted And Given
Righthaven’s Identification of Genuine Issues of Material Fact That
Required Discovery. .................................................................................. 9

B. The District Court Erred in Its Fair Use Analysis, Which Includes Its
Failure to Apply This Court’s Decision in Worldwide Church of God. .. 13

VII. CONCLUSION …………………………………………………

3

24

TABLE OF AUTHORITIES
CASES
Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993) ----------- 10
Burnett v. Twentieth Century Fox Film Corp., 491 F.Supp.2d 962, 967
(C.D. Cal. 2007) ----------------------------------------------------------------- 10
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) --------------------------- 10
Fisher v. Dees, 794 F.2d 432, 435-36 (9th Cir. 1986) ------------------------ 10
Haper & Row Publishers, Inc. v. Nation Enter., 471 U.S.539, 562 (1985) --16, 18, 22
Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th
Cir. 1986) ------------------------------------------------------------------------- 18
Los Angeles Times v. Free Republic, 54 U.S.P.Q.2d 1453, 1467 (C.D. Cal.
Apr. 4, 2000) --------------------------------------------------------------------- 22
Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir. 2009) -------------- 10
Portsmouth Square, Inc. v. Shareholders Protective Comm., 770 F.2d 866,
869 (9th Cir. 1985) -------------------------------------------------------------- 10
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)
------------------------------------------------------------------------------------- 24
Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d
1110, 1115-16 (9th Cir. 2000) ------------------------------------------- passim

I.

STATEMENT OF JURISDICTION
(a)

District Court Jurisdiction: Appellant Righthaven LLC

(“Righthaven”) invoked the district court’s subject matter jurisdiction over
its copyright infringement Complaint pursuant to 28 U.S.C. § 1331 and 28
U.S.C. § 1331.
(b)

Appellate Jurisdiction: This Court has jurisdiction pursuant to

28 U.S.C. § 1291.
(c)

Timeliness of Appeal: Righthaven’s appeal is timely pursuant

to Federal Rule of Appellate Procedure 4(a)(1)(A). The Final Judgment was
entered in this action on May 13, 2011. Righthaven’s Notice of Appeal was
filed on May 18, 2011.
(d)

Appeal From Final Judgment: This case is an appeal of a

Final Judgment entered on May 13, 2011.
II.

ISSUES PRESENTED FOR REVIEW
1. Whether the district erred in entering summary judgment, sua

sponte, in favor of the Defendants on fair use grounds under Section 107
when no answer had been filed, no affirmative defenses had been asserted,
no discovery had been conducted and Righthaven identified genuine issues
of material fact upon which discovery was required.

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2. Whether the district court erred in finding the Defendants 100%
wholesale replication of a copyrighted work alleged was protected as fair
use under Section 107 based largely on one Defendant’s non-profit status
and without regard to its display of infringing content on an Internet
website upon which the non-profit entity was actively soliciting
memberships and donations from the public, which appears directly
contrary to this Court’s decision in Worldwide Church of God v.
Philadelphia Church of God, Inc., 227 F.3d 1110, 1115-16 (9th Cir. 2000)
(“Worldwide Church of God”).
III.

STATEMENT OF THE CASE
On August 5, 2010, Righthaven LLC (“Righthaven”) filed a

copyright infringement action against Center for Intercultural Organizing
(“CIO”) and Kayse Jama (“Jama” and collectively referred to with CIO as
“Defendants”). (EOR 1 at #1.) Defendants first responded to Righthaven’s
Complaint by filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) (“Rule 12(b)(6)”), which asserted they were not subject
to personal jurisdiction. (Id. at # 8.) This motion was later denied by the
district court. (Id. at # 32.)

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While Defendants’ motion to dismiss was still pending, the district
court issued a sua sponte Order to Show Cause (the “OSC”) why
Righthaven’s Complaint should not be dismissed on the basis that
Defendants’ unauthorized replication of the Work was protected as fair use
under 17 U.S.C. § 107 (“Section 107”). (EOR 1 at # 12.) The district
court’s OSC did not set forth the procedural basis upon which it was
potentially dismissing Righthaven’s Complaint. (Id.) At the time the OSC
was issued, Defendants had not answered the Complaint, asserted a fair use
affirmative defense, and no discovery been conducted given that the case
was at its inception.
On December 28, 2010, the district court held an initial hearing on
the OSC. (EOR 27.) During the OSC hearing the district court was advised
that no discovery had been conducted and genuine issues of material fact
existed upon which discovery was required that precluded dismissal of
Righthaven’s Complaint sua sponte under Federal Rule of Civil Procedure
56 (“Rule 56”) on fair use grounds. (Id.) The district court ordered
Righthaven to submit an identification of genuine issues of material fact
upon which it maintained discovery was necessary. (Id.) The Defendants
and amicus curiae were provided with an opportunity to respond to
Righthaven’s identification of genuine issues of material fact. (Id.) The

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parties filed timely submissions in response to the district court’s order.
(EOR 27-29.)
On March 18, 2011, the district court held a second OSC hearing.
(EOR 36.) At the beginning of the OSC hearing, the district court rejected
each and every genuine issue of material fact identified by Righthaven as
being issues upon which discovery was required. (EOR 36.) The district
court then entered summary judgment in favor of the Defendants on the
grounds that the alleged copyright infringement at issue was protected as
fair use under Section 107. (Id.) The district court’s decision was
subsequently reduced to a formal order on April 22, 2011. (EOR 38.)
On May 13, 2011, the district court entered Final Judgment in
Defendants’ favor. (EOR 40.) On May 18, 2011, Righthaven timely
appealed the district court’s decision. (EOR 81.)

IV.

STATEMENT OF RELEVANT FACTS
On August 5, 2010, Righthaven filed a copyright infringement action

against the Defendants one of which, CIO, is a non-profit organization.
(EOR 1 at #1.) Defendants were alleged to have published, without
authorization, a 100% replication of the literary work entitled
“Misdemeanor violations leading to deportations” (the “Work”), which was
originally published in the Las Vegas Review Journal, on their publicly

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available Internet domain <interculturalorganizing.org> (the “Website”).
(EOR 1 at #1.) Righthaven validly obtained all rights, title and interest to
the Work, including the right to sue for past, present and future
infringements through an assignment from Stephens Media, LLC. (Id.)
Righthaven has been granted registration of the Work from the United
States Copyright Office. (Id.)
As discussed above, shortly after the case was commenced, the
district court issued a sua sponte OSC requiring Righthaven to explain why
its Complaint should not be dismissed on fair use grounds pursuant to
Section 107. (EOR 1 at # 12.) The OSC did not set forth the procedural
grounds upon which the district court was evaluating dismissal. (Id.)
During an initial OSC hearing, Righthaven advised the district court
that no discovery had occurred in the case and that genuine issues of
material fact remained upon which discovery was required. (EOR 27.) Prior
to the hearing a declaration of counsel was submitted on behalf of
Righthaven requesting a continuance so that discovery may be conducted.
(EOR 15.) Righthaven’s counsel’s declaration attached a copy of materials
printed from Defendants’ Website that illustrated CIO, despite being a nonprofit organization, actively solicited membership and donations from those
who viewed content on or otherwise visited the Website upon which the

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unauthorized copy of the Work appeared. (EOR 15 at 2, Ex. 1.)
Righthaven’s counsel declaration also set forth the means of discovery that
was anticipated in order to address the outstanding genuine issues of
material fact presented under a Section 107 analysis. (Id.) As a result of the
initial OSC hearing, the district court reluctantly and vehemently ordered
Righthaven to set forth in a filing the genuine issues of material fact that it
believed precluded dismissal under Rule 56. (EOR 27.) Righthaven
complied with the district court’s directive. (EOR 28.) Defendants and
amicus curiae responded to Righthaven’s submission. (EOR 29-30.)
At the commencement of the second OSC hearing, the district court
rejected each and every genuine issue of material fact that was identified by
Righthaven. (EOR 36.) The district court then determined, as a matter of
law, that each of the four analysis factors under Section 107. (Id.; EOR 38.)
It then proceeded to enter summary judgment in favor of Defendants based
on its fair use determination. (Id.; EOR 38.)
In entering summary judgment in favor of the Defendants, the
district court refused to follow binding precedent from this Court that in
view of the wholesale, unauthorized copying of the Work and the
reputational benefits and membership/donation solicitation engaged on the
Website where the unauthorized replication was posted a finding of fair use

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under Section 107 was wholly inappropriate. See Worldwide Church of
God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1115-16 (9th Cir.
2000). The district court instead attempted to distinguish this Circuit’s
binding precedent on such grounds as the facts before it involved the
wholesale replication of a news article, whereas the Worldwide Church of
God decision involved the wholesale replication of an entire book. (EOR 38
at 6.) The district court further elected to disregard this Court’s decision in
Worldwide Church of God by finding that the Defendants’ “solicitation of
donations on their website is immaterial . . .” given that “CIO is a non-profit
corporation with an educational mission . . . .” (Id. at 4.) Righthaven asserts
on appeal that the district court erred in failing to apply this Court’s
decision in Worldwide Church of God. In fact, given the record presented,
the district court would have been justified in entering a finding against a
fair use defense as a matter of law based this Court’s decision in Worldwide
Church of God.

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V.

ARGUMENT SUMMARY
1. The district court erred by sua sponte granting summary judgment

in favor of the Defendants by finding that their alleged infringing conduct
constituted fair use under Section 107 for several reasons. First, the district
court entered sua sponte summary judgment on a factually intensive and
case-by-case determined affirmative defense as a matter of law despite the
factual record before it being contested by Righthaven. Second, the district
court’s action was taken without either party having engaged in any
discovery whatsoever. Thus, the factual record before the district court had
not been developed through the discovery process. Finally, the district
court erred in entering summary judgment in favor of the Defendants
despite Righthaven having identified on three occasions genuine issues of
material fact upon which discovery was required. Any of the foregoing
grounds justify reversal of the district court’s sua sponte entry of summary
judgment based on fair use under Section 107.
2. Substantively, the district court’s sua sponte entry of summary
judgment on fair use grounds requires dismissal because it failed to apply
the controlling decision from this Court in Worldwide Church of God in its
fair use analysis. Moreover, the district court’s fair use analysis is legally
and factually flawed on numerous grounds.

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VI. ARGUMENT
A. The District Court Erred in Granting Sua Sponte Summary
Judgment by Finding The Defendants’ Alleged Infringing
Conduct Constituted Fair Use Despite No Discovery Having
Been Conducted And Given Righthaven’s Identification of
Genuine Issues of Material Fact That Required Discovery.
The district court’s decision to grant summary judgment in
Defendants’ favor on fair use grounds serves as the first basis for reversal
on appeal of this action. Specifically, the district court entered summary
judgment despite the Defendants having yet to answer the Complaint or
having asserted any affirmative defenses, including a defense of fair use
under Section 107, and with absolutely no discovery having been conducted
by either party. The district court’s drastic decision to enter summary
judgment in Defendants’ favor was also done despite Righthaven having set
forth on at least three occasions (prior to the first OSC hearing, during the
first OSC hearing, and by submission pursuant to the district court’s order
to do so) that genuine issues of material fact existed upon which discovery
was required before any meaningful fair use decision could be made. (EOR
15, 27, 28.) The district court’s actions in view of this record compel
reversal of its decision to enter summary judgment, sua sponte, in favor of
the Defendants on fair use grounds in this action.

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This Court reviews de novo a district court’s entry of summary
judgment. Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir. 2009).
District courts “possess the power to enter summary judgment sua sponte,
so long as the losing party was on notice that she had to come forward with
all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). In
such circumstances, the case must have been provided with a sufficient
opportunity to appreciate the discovery topics at-issue and to conduct
discovery on such topics. Buckingham v. United States, 998 F.2d 735, 742
(9th Cir. 1993); Portsmouth Square, Inc. v. Shareholders Protective Comm.,
770 F.2d 866, 869 (9th Cir. 1985). Granting summary judgment requires
the absence of any genuine issue of material fact, thus entitling a party to
entry of judgment as a matter of law. FED. R. CIV. P. 56 (c). Adjudication
may be delayed in order to provide a party potentially facing an adverse
decision to conduct discovery and present the court with additional
evidence. FED. R. CIV. P. 56 (f). With regard to fair use, the Court may
only conduct an analysis where, as a matter of law, the circumstances
present dispositive presumed or admitted facts. See Fisher v. Dees, 794
F.2d 432, 435-36 (9th Cir. 1986); accord Burnett v. Twentieth Century Fox
Film Corp., 491 F.Supp.2d 962, 967 (C.D. Cal. 2007).

10

As a threshold matter, the district court entered summary judgment
on a sua sponte basis as a matter of law on an affirmative defense, fair use,
which requires a record virtually devoid of any factual disputes given the
nature of the case specific inquiry involved in making such a determination,
despite Righthaven contesting the facts upon which its decision was
reached. See Fisher, 794 F.2d at 435-36; accord Burnett, 491 F.Supp.2d at
967. In fact, not only did Righthaven contest the factual record presented to
the district court by the Defendants, it specifically requested discovery on
issues related to the fair use inquiry and identified genuine issues of
material fact upon which discovery was required. (EOR 15, 27, 28.) As
such, the district court was certainly not presented with dispositive
presumed or admitted facts upon which it could justifiably find, as a matter
of law, that Defendants’ wholesale, 100% unauthorized reproduction of the
copyrighted Work constituted fair use under Section 107. Accordingly,
these circumstances independently support reversal of the district court’s
sua sponte entry of summary judgment.
The district court’s sua sponte entry of summary judgment on fair
use grounds under Section 107 was also in error because Righthaven had
specifically identified genuine issues of material fact upon which discovery
was required before such a decision could viably be reached. (EOR 15, 27,

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28.) In this regard, the Court is reminded that the Defendants had not filed
an answer, had not asserted any affirmative defenses, and absolutely no
discovery had been conducted by either party at the time the district court
entered summary judgment sua sponte against Righthaven on fair use
grounds. These circumstances further demonstrate the district court erred by
prematurely adjudicating a factually intensive fair use inquiry despite there
being absolutely no opportunity for the parties to develop the factual record
through the discovery process.
Not only did the district court enter summary judgment on a sua
sponte basis with a contested factual record and without the parties having
engaged in any discovery, it did so despite Righthaven having specifically
identified genuine issues of material fact that precluded a finding of fair use
absent an ability to engage in the discovery process. Righthaven specifically
identified genuine issues of material fact upon which discovery was
required three times to the district court. (EOR 15, 27, 28.) Each of these
efforts was summarily rejected by the district court. (EOR 36.) Moreover,
in reaching its fair use determination, the district court relied upon the
uncontested declaration of Jama. (EOR 38 at 4.) In sum, Righthaven
identified numerous material issues that required discovery concerning a
fair use analysis in this case and the district court refused to grant the

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company an opportunity to do so while adversely adjudicating its asserted
copyright infringement claims on fair use grounds. (EOR 38.) As identified
above, this Court must reverse the district court’s sua sponte grant of
summary judgment upon review.
B. The District Court Erred in Its Fair Use Analysis, Which
Includes Its Failure to Apply This Court’s Decision in
Worldwide Church of God.
Substantively, Righthaven maintains that the district court’s fair use
analysis is fatally flawed for several reasons. In fact, Righthaven asserts
that upon proper examination this case potentially warrants entry of
judgment as a matter of law against a fair use defense under Section 107,
which is the same result reached in the Worldwide Church of God decision
by this Court. Regardless of whether this result is reached by the Court, in
undertaking a fair use analysis, one fundamental and transcendent fact is
crystal clear and which the district court refused to appreciate – that
Defendants blatantly copied and used 100% of the Work without
authorization. As emphasized by this Court in Worldwide Church of God,
which rejected, as a matter of law, a non-profit organization’s fair use
defense for the 100% unauthorized replication and use of an author’s
copyrighted work:

13

We have found no published case holding that fair
use protected the verbatim copying, without
criticism, of a written work in its entirety.
Worldwide Church of God, 27 F.3d 1110, 1120.
This case is no different than Worldwide Church of God. It involves a
non-profit misappropriating 100% of a copyrighted work that was used in
connection with efforts to increase an organization’s revenue by its display
together with efforts to increase membership or donations by the general
public to support its purpose. Despite these similarities, the district court
refused to apply Worldwide Church of God in its fair use analysis. (EOR
38.) In fact, the district court distinguished this decision on dubious
grounds. (Id. at 5-6.) As set forth below, the district court erred in refusing
to apply Worldwide Church of God in its fair use analysis. Moreover, the
district court erred on several other grounds in entering summary judgment.
Accordingly, reversal by this Court is compelled.
1. The District Court Erred in Refusing to Apply The
Worldwide Church of God Decision Under Its Fair Use
Analysis.
This Court’s decision in Worldwide Church, which resulted in a
finding, as a matter of law, against fair use by a non-profit religious entity
with regard to its unauthorized, wholesale copying and use of a literary
work, was controlling authority the district court refused to apply under its

14

fair use analysis. The district court erred in doing so. As explained herein,
the similarities between the defendants’ conduct in Worldwide Church of
God and those of the Defendants in this case not only require a finding
against fair use but actually compel a finding, as a matter of law, against
fair use. Righthaven asks this Court to correct the district court’s error in its
consideration of its Worldwide Church of God decision as it applies to the
infringement case before it.
In Worldwide Church of God, the parties were two non-profit
religious organizations – Worldwide Church of God (“WCG”) and
Philadelphia Church of God, Inc. (“PCG”). Worldwide Church, 227 F.3d at
1112. A prominent WCG pastor had written a copyrighted work entitled
“Mystery of the Ages” (“MOA”). Id. WCG used MOA in promoting its
non-profit ministry for many years but at some point stopped doing so two
years after the author-pastor’s death. Id. at 1113. Some years later, two
former WCG ministers founded PCG. Id. As part of PCG’s new ministry,
it began copying and distributing MOA “verbatim, deleting only MCG from
the copyright page . . .” without requesting permission from WCG.
Worldwide Church, 227 F.3d at 1113. WCG sued PCG for copyright
infringement based on its wholesale, unauthorized copying of MOA. Id. at

15

1113-14. The district court granted summary judgment in favor of PCG by
finding that PCG’s alleged infringement qualified as fair use. Id. at 1114.
On review, this Court reversed the district court’s decision and found,
as a matter of law, PCG was “not entitled to claim fair use.” for the
unauthorized 100% copying of MOA. Id. at 1121. Moreover, this Court
directed the district court to enter a permanent injunction in WCG’s favor
and to conduct a trial on damages “[b]ecause infringement by PCG of
WCG’s copyright is undisputed, barring fair use . . . .” Id.
In its decision, this Court rejected a number of arguments that were
adopted by the district court in its fair use decision. First, this Court rejected
PCG’s contention that its copying of the MOA qualified as fair use because
it was for “non-profit religious and educational purposes.” Id. at 1114. The
assigned panel reasoned “‘[t]he crux of the profit/nonprofit distinction
[under a fair use analysis] is not whether the sole motive of the use is
monetary gain but whether the user stands to profit from exploitation of the
copyrighted material without paying the customary price.’” Id. at 1117
(quoting Haper & Row Publishers, Inc. v. Nation Enter., 471 U.S.539, 562
(1985)). In this regard, PCG, despite its non-profit status, was found to
have “unquestionably” profited by providing the MOA at no cost to its
members and through the use of same to potentially generate new

16

memberships. Id. at 1118. Moreover, by virtue of the relief entered, which
included directions to the district court to enter a permanent injunction and
to proceed to a trial on damages, the Worldwide Church of God panel found
a non-profit liable for copyright infringement. Id. at 1121. This stunning
result on appeal from a record upon which the district court granted
summary judgment in favor PCG on fair use grounds only serves to
reinforce that non-profit entities cannot escape liability for copyright
infringement based on their non-profit status or their altruistic institutional
goals and purposes. Accordingly, this Court’s decision in Worldwide
Church of God first stands for the proposition, as applied to this case, that
Defendants’ cannot escape copyright infringement liability because the
unauthorized display was made on a non-profit entity’s website. Despite
this holding, the district court relied heavily in its fair use ruling that “CIO
is a non-profit corporation with an educational mission . . . .” (EOR 38 at
4.) Furthermore, the district court concluded that the Defendants’
“solicitation of donations on their website is immaterial . . . .” (Id.) Both of
these reasons set forth by the district court as support for its fair use
decision are error because they directly conflict with this Court’s decision
in Worldwide Church of God.

17

The Worldwide Church of God decision also controlled the district
court’s fair use analysis because it involved the 100% duplication and
unauthorized use of a literary work. See Worldwide Church of God, 227
F.3d at 1113. The 100% duplication at-issue in Worldwide Church of God
transcended this Court’s Ninth four-factor analysis and unquestionably
resulted in a finding, as a mater of law, against fair use. With regard to the
purpose and character of the use, which is the first factor under a fair use
analysis, the panel found that PCG’s wholesale replication of the MOA
weighed against fair use because “PCG’s copying of WCG’s MOA in its
entirety bespeaks of no ‘intellectual labor and judgment.’” Worldwide
Church of God, 227 F.3d at 1117. The panel additionally observed, with
regard to the ”amount and substantiality” third fair use factor, “[w]hile
‘wholesale copying does not preclude fair use per se,’ copying an entire
work ‘militates against a finding of fair use.’” Id. (quoting Hustler
Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.
1986)). The panel then explained that “‘the fact that a substantial portion of
the infringing work was copied verbatim is evidence of the qualitative value
of the copied material, both to the originator and to the plagiarist who seeks
to profit from marketing someone else’s copyrighted expression.’” Id. at
1118 (quoting Harper & Row Publishers, Inc., 471 U.S. at 565)). In all

18

practicality, this Court’s decision in Worldwide Church of God virtually
established a presumption against a finding of fair use in cases of
unauthorized, wholesale copying of a protected work.
Despite this Court’s almost per se pronouncement against a finding
of fair use in cases of 100% unauthorized replication, the district court
refused to adhere to these directives in its fair use decision. Specifically,
under the purpose and character of the use factor, the district court found
the Defendants’ wholesale copying of the Work to be transformative
because it was used to “educate the public . . .” despite the Work having
originally been published in a newspaper specifically tasked with such a
purpose. (EOR 38 at 4.) The district court additionally found that despite
the Defendants having taken 100% of the Work without permission, “the
amount used was reasonable in light of the purpose of the use, which was to
educate the public about immigration issues.” (Id. at 5.) These findings are
directly contrary to this Court’s decision in Worldwide Church of God.
Not only was the district court’s fair use analysis flawed, its attempt
to distinguish the Worldwide Church of God decision was equally without
merit and in error. First, the district court reasoned that the Defendants in
this case were using the unauthorized copy of the Work for informational
purposes rather than in competition to garner membership from another

19

entity. (EOR 38 at 6.) Second, the district court distinguished Worldwide
Church of God based on the quantity of the 100% copyright content
misappropriated. (Id.) Specifically, the district court reasoned that this case
was distinguishable from Worldwide Church of God because it involved the
unauthorized replication of a news article as opposed to an entire book. (Id.)
Finally, the district court reasoned that because the Defendants had
attributed the unauthorized, wholesale copy of the Work to the source
publication the facts were distinguishable from those in Worldwide Church
of God where copyright information was deleted in the unauthorized
replication. (Id.) Righthaven maintains that none of the district court’s
stated reasons for distinguishing this Court’s decision in Worldwide Church
of God have merit under a fair use analysis. This further demonstrates the
district court erred in refusing to apply this Court’s controlling to its fair use
analysis. Accordingly, reversal of the district court’s fair use analysis is
mandated on this basis alone.
2. The District Court Erred in Its Fair Use Analysis For
Several Additional Reasons.
As argued above, the district court erred in refusing to apply this
Court’s decision in Worldwide Church of God under its fair use analysis.
This fatal flaw permeates throughout the district court’s fair use analysis.

20

This reversible error aside, the district court erred in its fair use analysis for
several additional reasons that support reversal upon review.
Turning first to the purpose and character of the use analysis
employed by the district court, it improperly concluded that a non-profit
entity could not engage in commercial activity on almost a per se basis.
(EOR 38 at 4.) According to the district court, if a non-profit entity does not
publish, license, or sell an unauthorized work and it is engaged in some
educational mission, it cannot engage in commercial activity under a
purpose and character of the use inquiry as part of a fair use analysis. (Id.)
Moreover, the solicitation of donations and membership by the non-profit in
the same media in which the unauthorized copy of a work is displayed is
immaterial under a purpose and character fair use analysis. (Id.) In short,
the district court has found that a non-profit entity can raise countless
amounts of money in membership dues and in donations as long as it does
not commercially sell a misappropriated copyrighted work while
concurrently being permitted to display such wrongfully acquired content in
connection with the entity’s efforts to promote its activities and cause. This
analysis is directly contrary to this Court’s decision in Worldwide Church of
God.

21

Next, the district court applied an analysis under the second fair use
factor, which considers the nature of the copyrighted work that essentially
establishes a presumption in favor of the defense when news material is
misappropriated on a wholesale basis. (EOR 38 at 5.) In essence, the district
court found that because the Work was a news article, the totality of its
content was informational and permissible for productive use by others.
(Id.) In reaching this erroneous conclusion, the district court failed to accord
any degree of creative effort to the Work whatsoever. In this regard, the
“[c]reation of a nonfiction work, even a compilation of pure fact, entails
originality.” Harper & Row Publishers, Inc., 471 U.S. at 547. Moreover,
written news articles reflect the reporter’s creative endeavors in compiling a
piece for dissemination. Los Angeles Times v. Free Republic, 54 U.S.P.Q.2d
1453, 1467 (C.D. Cal. Apr. 4, 2000) (“Free Republic II”). As noted by the
court in Free Republic II, “a news reporter must determine which facts are
significant and recount them in an interesting and appealing manner.” Id.
In complete disregard for the foregoing decisions, the district court
has determined by virtue of its decision that news content is simply not
sufficiently worthy of copyright protection based on its informative content.
Moreover, the district court has reached this result, which it believes no
reasonable juror could conclude otherwise, without any substantive

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discussion of the Work at issue. Simply put, if it is a news article, the
nature of the copyrighted work supports a finding of fair use. This is an
improper and erroneous analysis by the district court under the second fair
use analysis factor.
Next, the district court erroneously concluded that despite the
Defendants’ unauthorized misappropriation of 100% of the Work, the
amount and substantiality fair use factor was neutral. (EOR 38 at 5.) Again,
there is simply no dispute that the Defendants took the entirety of the Work
for their own use. Despite this fact, the district court reasoned that taking
100% of the Work was “reasonable in light of the purpose of the use . . .”
(Id.) This determination is directly at odds with this Court’s observation
that it had “found no published case holding that fair use protected the
verbatim copying, without criticism, of a written work in its entirety.”
Worldwide Church of God, 227 F.3d at 1120. Accordingly, the district
court’s finding that the amount of the copyrighted work used under its fair
use analysis was neutral clearly constitutes an unprecedented finding that
amounts to unquestionable error.
Finally, the district court erred in its analysis of the effect on the
market in its decision. (Id. at 6.) Based on its prior refusal to acknowledge
that a non-profit entity can engage in a commercial purpose under a fair use

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analysis, the district court failed to afford Righthaven with a presumption of
market harm. See Sony Corp. of Am. v. Universal City Studios, Inc., 464
U.S. 417, 451 (1984). Likewise, given that the district court had
erroneously determined that the wholesale replication of the Work by the
Defendants was transformative, it declined to recognize that any market
substitution could be present. (EOR 38 at 7.) Both of the foregoing
conclusions by the district court were in error based on the record
presented. Accordingly, as detailed above, the district court’s fair use
analysis was flawed for several reasons and therefore requires reversal upon
review by this Court.
V.

CONCLUSION
In sum, the district court erred in entering sua sponte summary

judgment in favor of the Defendants based on a finding that their alleged
infringing conduct constituted fair use under Section 107. Specifically, the
district court took this drastic step despite the absence of any discovery
having been conducted by the parties. Moreover, it did so despite a
disputed factual record and despite Righthaven’s efforts to specifically
identify genuine issues of material fact upon which discovery was required.
Reversal of the district court’s entry of summary judgment is compelled on
these procedural grounds.

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The district court’s sua sponte entry of summary judgment is further
compelled on substantive grounds. In short, the district court’s fair use
analysis is fatally flawed and completely disregarded this Court’s binding
precedent in Worldwide Church of God without a justifiable basis for doing
so. Upon a proper analysis of the four fair use factors, this case not only
warrants reversal on a substantive basis, but it is equally amenable to entry
of judgment as a matter of law against assertion of fair use defense as was
done in the Worldwide Church of God decision. Even if this relief is not
entered, the district court’s fair use determination still compels reversal
upon substantive examination by this Court.
Dated this 22nd day of November, 2011.
SHAWN A. MANGANO, LTD.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
8367 West Flamingo Road, # 100
Las Vegas, Nevada 89147
Attorney for Appellant
Righthaven LLC

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STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6, Righthaven identifies the following
related cases pending in this Court that raise the same or closely related
issues or involve the same transaction or event:
1.

Righthaven LLC v. Hoehn, Case No. 11-16751: This case involves
the alleged infringement of a copyrighted work assigned by
Stephens Media, LLC, which was dismissed by the district court
for lack of subject matter jurisdiction. A companion appeal
concerning the award of attorneys’ fees and costs is also pending
as Case No. 11-16995.

2.

Righthaven LLC v. DiBiase, Case No. 11-16776: This case
involves the alleged infringement of a copyrighted work assigned
by Stephens Media, LLC, which was dismissed by the district
court for lack of subject matter jurisdiction.

3.

Righthaven LLC v. Newman, Case No. 11-17690: This case
involves the alleged infringement of a copyrighted work assigned
by Stephens Media, LLC, which was dismissed by the district
court for lack of subject matter jurisdiction.

4.

Righthaven LLC v. Democratic Underground, LLC, Case No. 1117210: This case involves the alleged infringement of a
copyrighted work assigned by Stephens Media, LLC. This appeal
involves the district court’s denial of leave to intervene as a matter
of right following dismissal of Righthaven’s complaint for lack of
subject matter jurisdiction.

5.

Righthaven LLC v. Realty One Group, Inc., Case No. 11-15714:
This case involves the alleged infringement of a copyrighted work
assigned by Stephens Media, LLC in which the district court
dismissed Righthaven’s compliant on fair use grounds.

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CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B) because:
X

this brief contains 5,245 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
__

this brief uses a monospaced typeface and contains ___ lines of

text, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(6) because:
X

this brief has been prepared in a proportionately spaced

typeface using Microsoft Word in 14 point font size and Times New Roman
style, or
__

this brief has been prepared in a monospaced spaced typeface

using ___________ with __________.
DATED this 22nd day of November, 2011.
SHAWN A. MANGANO, LTD.
By: /s/ Shawn A. Mangano
SHAWN A. MANGANO, ESQ.
8367 West Flamingo Road, #100
Las Vegas, Nevada 89147
Attorney for Appellant
Righthaven LLC

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