Righthaven LLC v. Center For Intercultural Organ, et al

Filing 20

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Electronic Frontier Foundation, Digital Media Law Project, Public Knowledge and Professors. Date of service: 01/13/2012. [8031869] (KO)

NO. 11-16358

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGHTHAVEN LLC,
APPELLANT,
V.

CENTER FOR INTERCULTURAL ORGANIZING, and KAYSE JAMA,
APPELLEES.
On Appeal From The United States District Court
For The District of Nevada
Case No. 2:10-cv-01322-JCM-LRL
Honorable James C. Mahan, District Judge

BRIEF AMICI CURIAE OF ELECTRONIC FRONTIER FOUNDATION,
DIGITAL MEDIA LAW PROJECT, PUBLIC KNOWLEDGE AND
PROFESSORS IN SUPPORT OF AFFIRMANCE

Kurt Opsahl (SBN 191303)
Corynne McSherry (SBN 221504)
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amici Curiae

DISCLOSURE OF CORPORATE AFFILIATIONS AND
OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN
LITIGATION
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici
Curiae the Electronic Frontier Foundation, the Digital Media Law Project, Public
Knowledge, and the professor amici (collectively, “Amici”) state that none of the
Amici have any parent corporation, and that no publicly held corporation owns
10% or more of the stock of any of the Amici.
Dated: January 13, 2012

By: /s/ Kurt Opsahl
Kurt Opsahl
Corynne McSherry
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amici Curiae

i

TABLE OF CONTENTS
STATEMENTS OF INTEREST AND CONSENT TO FILE ................................. 1
I.
  INTRODUCTION .............................................................................................. 4

II.
  BACKGROUND ............................................................................................... 6

III.
  ARGUMENT .................................................................................................... 9

A.

BECAUSE RIGHTHAVEN FAILED TO RAISE ANY GENUINE
ISSUES OF MATERIAL FACT, SUA SPONTE SUMMARY
JUDGMENT WAS APPROPRIATE ................................................. 10

B.

THE DISTRICT COURT CORRECTLY CONCLUDED THAT
CIO’S NON-COMMERCIAL TRANSFORMATIVE
EDUCATIONAL USE OF A FACTUAL NEWSPAPER ARTICLE
FOR WHICH RIGHTHAVEN HAD NO MARKET WAS A FAIR
USE ..................................................................................................... 11

C.

THE RECORD SUPPORTS A FAIR USE FINDING ....................... 15

PURPOSE AND CHARACTER OF THE USE ...................... 15

2.

NATURE OF THE WORK ...................................................... 21

3.

AMOUNT AND SUBSTANTIALITY .................................... 22

4.

EFFECT ON THE VALUE AND MARKET .......................... 23

5.

1.

THE PUBLIC INTEREST FAVORS A FAIR USE
FINDING .................................................................................. 28

IV.
  CONCLUSION .............................................................................................. 30

ii

TABLE OF AUTHORITIES

Federal Cases

A.V. ex rel. Vanderhye v. iParadigms,
562 F.3d 630 (4th Cir. 2009) ........................................................................ 14

A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) ...................................................................... 20

Am. Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir. 1994) ..................................................................... 20, 27

Belmore v. City Pages, Inc.,
880 F. Supp. 673 (D. Minn. 1995) ............................................................... 23

Biggs v. Terhune,
334 F.3d 910 (9th Cir. 2003) ........................................................................ 25

Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006) ................................................................... 25, 28

Bond v. Blum,
317 F.3d 385 (4th Cir. 2003) ........................................................................ 14

Cal. Dep’t. of Toxic Substances Control v. Campbell,
138 F.3d 772 (9th Cir. 1998) .................................................................. 10, 11

Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) .............................................................................. passim

Christopher Phelps & Assocs. v. Galloway,
492 F.3d 532 (4th Cir. 2007) ........................................................................ 27

CoxCom, Inc. v. Chaffee,
536 F.3d 101 (1st Cir. 2008) ........................................................................ 27

eBay v. MercExchange,
547 U.S. 388 (2006) ........................................................................... 6, 27, 28

iii

Elvis Presley Enters., Inc. v. Passport Video,
349 F.3d 622 (9th Cir. 2003) ........................................................................ 19

Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ................................................... passim

Flexible Lifeline Systems, Inc. v. Precision Lift, Inc.,
654 F.3d 989 (9th Cir. 2011) ........................................................................ 27

Hancock v. Montgomery Ward,
787 F.2d 1302 (9th Cir. 1986) ...................................................................... 10

Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) ............................................................................... 12, 21

Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148 (9th Cir. 1986) .................................................... 12, 18, 20, 29

Johnson v. Mitsubishi Digital Elecs. Am., Inc.,
365 Fed.Appx. 830 (9th Cir. 2010) .............................................................. 10

Kelly v. Arriba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) ............................................................ 14, 18, 20

L.A. News Serv. v. CBS Broad., Inc.,
305 F.3d 924 (9th Cir. 2002) ........................................................................ 21

L.A. News Serv. v. KCAL-TV Channel 9,
108 F.3d 1119 (9th Cir. 1997) ................................................................ 21, 22

L.A. News Serv. v. Reuters Television, Int’l.,
149 F.3d 987 (9th Cir. 1998) ........................................................................ 22

L.A. News Serv. v. Tullo,
973 F.2d 791 (9th Cir. 1992) ........................................................................ 22

Lish v. Harper’s Magazine Found.,
807 F. Supp. 1090 (S.D.N.Y. 1992) ............................................................. 20

Los Angeles Times v. Free Republic,
54 U.S.P.Q.2d 1453 (C.D. Cal. 2000) .................................................... 21, 22

iv

Marcus v. Rowley,
695 F.2d 1171 (9th Cir. 1983) ...................................................................... 20

Matushita Elec. Indus. v. Zenith Radio Corp.,
475 U.S. 574 (1986). .................................................................................... 10

MCA, Inc. v. Wilson,
677 F.2d 180 (2d Cir. 1981) ......................................................................... 23

Newport-Mesa Unified School Dist. v. State of Calif. Dep’t of Educ.,
371 F. Supp. 2d 1170 (C.D. Cal. 2005)........................................................ 16

Núñez v. Caribbean Int’l News Corp.,
235 F.3d 18 (1st Cir. 2000) .................................................................... 14, 15

Perfect 10 v. Amazon.com,
508 F.3d 1146 (9th Cir. 2007) ............................................................... passim

Perfect 10, Inc. v. Google, Inc.,
653 F.3d 976 (9th Cir. 2011) .................................................................. 27, 28

Princeton Univ. Press v. Mich. Doc. Servs., Inc.,
99 F.3d 1381 (6th Cir. 1996) (en banc),
cert. denied, 520 U.S. 1156 (1997) .............................................................. 29

Righthaven v. Barham,
No. 2:10-cv-02150-RLH, 2011 WL 2473602 (D. Nev. June 22, 2011) ........ 5

Righthaven v. CIO,
No. 2:10-cv-01322-JCM-LRL, 2011 WL 1541613
(D. Nev. April 22, 2011) ........................................................................ 24, 29

Righthaven v. Democratic Underground,
791 F. Supp. 2d 968 (D. Nev. 2011) .............................................. 5, 9, 24, 25

Righthaven v. DiBiase,
No. 2:10-cv-01343-RLH, 2011 WL 2473531 (D. Nev. June 22, 2011) ........ 5

Righthaven v. Gardner,
No. 1:11-cv-00777-JLK (D. Colo. Mar. 25, 2011) .................................... 8, 9

v

Righthaven v. Hill,
No. 1:11-cv-00211-JLK (D. Colo. Apr. 7, 2011)......................................... 24

Righthaven v. Hoehn,
792 F. Supp. 2d 1138 (D. Nev. 2011) ...................................................... 5, 25

Righthaven v. Hyatt,
No. 2:10-cv-01736-KJD, 2011 WL 3652532 (D. Nev. Aug. 19, 2011) ........ 5

Righthaven v. Kelleher,
No. 2:10-cv-01184-KJD (D. Nev. Jan 13, 2012) ............................................ 5

Righthaven v. Mostofi,
No. 2:10-cv-01066-KJD, 2011 WL 2746315 (D. Nev. July 13, 2011).......... 5

Righthaven v. Newman,
No. 2:10-cv-01762-JCM, 2011 WL 4762322 (D. Nev. Oct. 7, 2011) ........... 5

Righthaven v. Newsblaze,
No. 2:11-cv-00720-RCJ, 2011 WL 5373785 (D. Nev. Nov. 4, 2011) ........... 5

Righthaven v. Pahrump Life,
No. 10-cv-01575-JCM (D. Nev. Aug. 12, 2011) ..................................... 7, 25

Righthaven v. Realty One Group, Inc.,
No. 2:10-cv-01036-LRH, 2010 WL 4115413 (D. Nev. Oct. 19, 2010) ......... 5

Righthaven v. Wolf,
No. 1:11-cv-00830-JLK, 2011 WL 4469956 (D. Colo. Sept. 27, 2011) ... 5, 8

Salinger v. Colting,
607 F.3d 68 (2d Cir. 2010) ..................................................................... 27, 28

Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1992) ................................................................ 18, 20

Sony Computer Entertainment America v. Bleem,
214 F.3d 1022 (9th Cir. 2000) ...................................................................... 18

Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) .............................................................................. passim

vi

Stern v. Does,
No. 2:09-cv-01986-DMG-PLA, 2011 WL 997230
(C.D. Cal. February 10, 2011)...................................................................... 19

Triangle Publ’ns, Inc. v. Knight–Ridder Newspapers, Inc.,
626 F.2d 1171 (5th Cir. 1980) ...................................................................... 14

United States v. Am. Soc. of Composers, Authors, and Publishers,
599 F. Supp. 2d 415 (S.D.N.Y. 2009) .......................................................... 13

Video-Cinema Films v. CNN,
No. 98 CIV. 7128IBSJ, 2001 WL 1518264 (S.D.N.Y. Nov. 28, 2001)....... 24

Worldwide Church of God v. Philadelphia Church of God (WWCG),
227 F.3d 1110 (9th Cir. 2000) .......................................................... 12, 17, 23

Federal Statute

17 U.S.C. § 107 ............................................................................................... passim

Federal Rules

Fed. R. Civ. P. 11 ..................................................................................................... 8

Fed. R. Civ. P. 56 ................................................................................................... 11

Constitutional Provisions
U.S. CONST. art. I, §8, cl. 8 .................................................................................. 28

Treatises

Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions,
1978-2005 (2008) ......................................................................................... 14

Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT (2010) ......... 22, 25

William Patry, PATRY ON FAIR USE (2010) ............................................................ 14

vii

STATEMENTS OF INTEREST AND CONSENT TO FILE
The Electronic Frontier Foundation (“EFF”) is a non-profit, membersupported civil liberties organization working to protect rights in the digital world.
EFF and its over 16,000 dues-paying members have a strong interest in assisting
the courts and policy-makers in striking the appropriate balance between
intellectual property and the public interest. EFF has been deeply involved in the
Righthaven cases almost from their inception, allowing it to offer the Court a
unique viewpoint. 1
Digital Media Law Project (“DMLP”) provides legal assistance, education,
and resources for individuals and organizations involved in online and citizen
media. DMLP is affiliated with Harvard University’s Berkman Center for Internet
& Society, a research center founded to explore cyberspace, share in its study, and
help pioneer its development.
Public Knowledge is a non-profit public interest organization devoted to
protecting citizens‚ rights in the emerging digital information culture and focused
on the intersection of intellectual property and technology. Public Knowledge
seeks to guard the rights of consumers, innovators, and creators at all layers of our

1

EFF is counsel to defendants-appellees in Righthaven v. Democratic
Underground, D. Nev. 2:10-cv-01356-RLH, 9th Cir. No. 11-17210 and Righthaven
v. DiBiase, D. Nev. 2:10-cv-01343-RLH, 9th Cir. No. 11-16776, counsel for
amicus Democratic Underground in Righthaven v. Pahrump Life, D. Nev. 10-cv01575-JCM, and amicus in Righthaven v. Wolf, D. Colo. 1:11-cv-00830-JLK.

1

culture through legislative, administrative, grass-roots, and legal efforts, including
regular participation in copyright and other intellectual property cases that threaten
consumers, communication, and innovation.
The Professors Amici are professors at universities throughout the country
who are interested in copyright policy and fair use, and have been following
Righthaven and the issues arising from mass copyright infringement suits.2
Patricia Aufderheide is a University Professor and the Director of the Center
for Social Media at the American University School of Communication, and is the
co-author with Prof. Peter Jaszi of Reclaiming Fair Use: How to Put Balance Back
in Copyright (University of Chicago Press, July 2011).
Annemarie Bridy is an Associate Professor of Law at the University of
Idaho College of Law.
Thomas G. Field, Jr. is a Professor of Law at the University of New
Hampshire School of Law (formerly Franklin Pierce).
Eric Goldman is an Associate Professor and Director of the High Tech Law
Institute, Santa Clara University School of Law. He has taught and researched in
the area of Internet copyright law for over 15 years.

2

The Professors Amici submit this brief on their own behalf, not on behalf of their
respective universities and institutions.

2

William T. Gallagher is an Associate Professor of Law and the Co-Director
of the IP Law Program at the Golden Gate University School of Law.
Greg Lastowka is a Professor of Law at the Rutgers School of Law-Camden.
Michael L. Rustad is the Thomas F. Lambert Jr. Professor of Law and the
Co-Director of the Intellectual Property Law Concentration at the Suffolk
University Law School.
Matthew Sag is a Professor of Law at the Loyola University of Chicago
School of Law.
Jason Schultz is an Assistant Clinical Professor of Law and the Co-Director
of the Samuelson Law, Technology & Public Policy Clinic at the University of
California’s Boalt Hall School of Law.
Rebecca Tushnet is a Professor of Law at the Georgetown University Law
Center.
Jane K. Winn is the Charles I. Stone Professor of Law at the University of
Washington School of Law.
Counsel for all parties have consented to the filing of this brief.3

3

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no one, except for
Amici or their counsel, has authored the brief in whole or in part, or contributed
money towards the preparation of this brief.

3

I.

Introduction
Appellant Righthaven LLC seeks to have this Court undo two sound tenets

of law: (1) that summary judgment is appropriate where no material facts are
genuinely disputed; and (2) that summary judgment on fair use is appropriate
where a court has balanced all four factors under Section 107 of the Copyright
Act and found that the secondary use is fair. As explained below, the Court
should deny Righthaven’s attempt to rewrite the standard for summary judgment
and affirm the District Court’s decision.
Amici also urge the Court to uphold the district court’s ruling as a matter of
sound copyright policy. Amici are counsel, law professors, and public interest
lawyers who have been writing about, commenting on, and defending against
Righthaven’s “scorched earth” campaign of mass copyright infringement suits.
These suits have been brought against the operators of numerous blogs and
websites on the Internet, including disabled children, political bloggers, electoral
candidates,

etc.

See

generally

Righthaven

Stories,

VEGAS

INC,

http://www.vegasinc.com/news/legal/righthaven/ (last visited Jan. 10, 2012). A
key aspect of Righthaven’s business model is finding those who have casually or
inadvertently posted a news article (or just excerpts) or photo online. Righthaven
then purchases the bare right to sue and sues the poster, seeking statutory
damages of up to $150,000 for the single post.

4

This model must scale to be profitable, so Righthaven endeavors to keep its
costs extremely low, while running up the costs of defense. This means resisting
all attempts at quick resolution, such as the early summary judgment ruling here
by the District Court. Nonetheless, some defendants have persevered, and
Righthaven has lost every single case that has been tested in court.4 As a result,
Righthaven is now in the hands of a receiver. This appeal, along with several
others currently pending before the Ninth Circuit, represents Righthaven’s forlorn
hope to salvage its extortionist business model.
The District Court here recognized the danger of a cost of defense
settlement and accelerated the summary judgment proceedings so that the
appellees Center for Intercultural Organizing (“CIO”) and Kayse Jama would not
suffer long and expensive litigation. But it did not deny Righthaven its day in
court. Quite the contrary: Righthaven had every chance to present evidence on the

4

Righthaven v. Kelleher, No. 2:10-cv-01184-KJD (D. Nev. Jan 13, 2012);
Righthaven v. Newsblaze, No. 2:11-cv-00720-RCJ, 2011 WL 5373785 (D. Nev.
Nov. 4, 2011); Righthaven v. Realty One Group, Inc., No. 2:10-cv-01036-LRH,
2010 WL 4115413 (D. Nev. Oct. 19, 2010); Righthaven v. Newman, No. 2:10-cv01762-JCM, 2011 WL 4762322 (D. Nev. Oct. 7, 2011); Righthaven v. Wolf,
No. 1:11-cv-00830-JLK, 2011 WL 4469956 (D. Colo. Sept. 27, 2011); Righthaven
v. Hyatt, No. 2:10-cv-01736-KJD, 2011 WL 3652532 (D. Nev. Aug. 19, 2011);
Righthaven v. Mostofi, No. 2:10-cv-01066-KJD, 2011 WL 2746315 (D. Nev. July
13, 2011); Righthaven v. Barham, No. 2:10-cv-02150-RLH, 2011 WL 2473602 (D.
Nev. June 22, 2011); Righthaven v. DiBiase, No. 2:10-cv-01343-RLH, 2011 WL
2473531 (D. Nev. June 22, 2011); Righthaven v. Hoehn, 792 F. Supp. 2d 1138 (D.
Nev. 2011); Righthaven v. Democratic Underground, 791 F. Supp. 2d 968 (D.
Nev. 2011).

5

fair use factors and dispute the facts showing that CIO’s use was non-commercial,
transformative and not a substitute, the work was largely factual, the amount
taken was reasonable, and there was no evidence of harm to the market for or
value of the work.
Instead of presenting relevant evidence, Righthaven argued that summary
judgment should be denied solely on the basis of two unsupportable
presumptions: (1) that using 100% of a work could never be reasonable under the
third fair use factor; and (2) that market harm under the fourth factor always
exists until proven otherwise. Neither of these presumptions is supported by the
Copyright Act or the cases interpreting it. Indeed, the Supreme Court and the
Ninth Circuit have both found that the use of entire copyrighted works can be
protected by the fair use doctrine and that, especially after eBay v.
MercExchange, 547 U.S. 388 (2006), there is no presumption of harm in
copyright cases.
Amici urge the court to reject Righthaven’s skewed approach and, applying
the time-honored fair use analysis, affirm the District Court’s ruling in favor of
CIO.
II.

Background
This appeal, one in a series of Righthaven appeals pending before this Court,

should be considered in light of the lawsuit campaign from which it derives. As

6

early as 2006, Las Vegas attorney and Righthaven CEO Steven Gibson wrote
about what he saw as an online gold mine untapped by copyright holders. Steven
A. Gibson & J.D. Lowry, The Need for Speed: The Path to Statutory Damages in
Copyright (2006), http://www.lbbslaw.com/uploadedFiles/Attorneys/The Need For
Speed(2).pdf. Looking at estimates of online infringement, Mr. Gibson wrote, “[I]f
each of those billions of infringements were multiplied by a reduced statutory
damage award of merely $100,000, the dollar value of infringements would exceed
trillions of dollars, arguably into the quadrillions.” Id. at 4.
Righthaven was an attempt to tap that ‘gold mine’ at the least possible cost,
by filing cookie-cutter lawsuits seeking statutory damages against individual
bloggers and websites that had allegedly infringed the copyright in various news
articles. “On January 18, 2010, attorney Steven A. Gibson (through his company
Net Sortie Systems LLC), along with the family of Warren Stephens (through their
investment vehicle SI Content Monitor LLC), executed the Righthaven operating
agreement [“RHOA”] creating Plaintiff, Righthaven LLC.” Order Dismissing
Righthaven’s Complaint, Righthaven v. Pahrump Life, No. 10-cv-01575-JCM (D.
Nev. Aug. 12, 2011), Dkt. 67 at 1.
The

RHOA

candidly

describes

Righthaven’s

business

objectives:

“Righthaven was created solely to acquire a ‘limited, revocable assignment (with a
license-back) of copyright from third Persons.’” Id. at 5 (quoting RHOA § 3.2(c)).

7

Righthaven would then ‘troll’ the internet looking for allegedly infringing postings
of LVRJ articles and, once it found one, obtain a purported assignment, register the
copyright and file a lawsuit. Id. Righthaven’s initial partner was Stephens Media
(also part of the same Stephens family’s investments), the publisher of the Las
Vegas Review-Journal, who signed a Strategic Alliance Agreement (“SAA”) with
Righthaven. Id. at 1-2 (citing Gibson Decl. (Dkt. 26), Ex. 2 at 9).
In March 2010, Righthaven began filing copyright infringement suits against
websites and bloggers, ultimately initiating over 200 lawsuits in the District of
Nevada alone.5 Each of the cases alleged “willful infringement” and demanded up
to $150,000 in statutory damages, seizures of each website’s domain name and
attorneys’ fees. Despite the Rule 11 duty to investigate, it was clear that
Righthaven did not bother to consider whether the fair use doctrine sheltered any
of the uses in question. For example, in Righthaven v. Gardner, Righthaven sued a
reporter who wrote an article about the Colorado Righthaven lawsuits, illustrated
with a grainy excerpt from the court record. See Complaint Ex. 2 (Dkt. 1),

5

Righthaven also filed over 50 cases on behalf of the Denver Post in the District of
Colorado. See e.g., Wolf, supra, 2011 WL 4469956. The Denver Post is no longer
doing business with Righthaven. See David Kravets, Newspaper Chain Drops
Righthaven — ‘It Was a Dumb Idea’, WIRED (Sept. 8, 2011),
http://www.wired.com/threatlevel/2011/09/medianews-righthaven-dumb-idea/.

8

Righthaven v. Gardner, No. 1:11-cv-00777-JLK (D. Colo. Mar. 25, 2011).6
At the same time, Righthaven’s litigation tactics included deceptive behavior
that drove up the cost of defense. See Tr. of Order to Show Cause (Dkt. 137),
Democratic Underground, No. 2:10-cv-01356-RLH (D. Nev. July 14, 2011) at 1517

(sanctioning

Righthaven

$5,000

for

making

“intentionally

untrue”

“misrepresentations.”).
For most defendants, it made no economic sense to invest in defending the
case – and Righthaven’s business model relied on that calculus. Individual facts
and the merits of defenses such as fair use would do little to help defendants reach
a just resolution, because costs of defense would always exceed the nuisance
settlement value.
III.

Argument
The District Court’s summary judgment should be affirmed because

(1) Righthaven has raised no genuine issues of material fact and (2) CIO’s noncommercial transformative use of the highly factual news article, which did not
harm any market, was a fair use as a matter of law.

6

After a public outcry, Righthaven dropped the suit, calling it a “clerical mistake.”
Nate Anderson, Copyright troll Righthaven’s epic blunder: a lawsuit targeting Ars,
ARS
TECHNICA
(Mar.
29,
2011),
http://arstechnica.com/techpolicy/news/2011/03/copyright-troll-righthavens-epic-blunder-a-lawsuit-targetingars.ars. Amici suggest that the fact that a lawsuit could be launched based on a
“clerical mistake,” with the attendant expense and anxiety it must cause the
defendant, reflects the dangers of Righthaven’s mass litigation strategy.

9

A.

Because Righthaven Failed To Raise Any Genuine Issues of
Material Fact, Sua Sponte Summary Judgment Was Appropriate

Righthaven first argues that the Court erred in granting summary judgment
because it refused to allow further discovery. However, when pressed by the
District Court, Righthaven was unable to identify a single material fact in dispute.
Righthaven’s Opening Brief suffers the same flaw.
Aside from vague assertions about possible discovery and irrelevant
curiosities, nothing in Righthaven’s brief suggests any genuine factual issues. See
Opening Brief at 9-12. See Johnson v. Mitsubishi Digital Elecs. Am., Inc., 365
Fed.Appx. 830, 833 (9th Cir. 2010) (“vague references to ‘discovery disputes’ and
the need to ‘accumulate evidence’ were insufficient to satisfy Rule 56(f)’s
specificity requirement”); Cal. Dep’t. of Toxic Substances Control v. Campbell,
138 F.3d 772, 781 (9th Cir. 1998) (noting that case did “not arise in the abstract”
when investigating whether a disputed fact may exist).
Even Righthaven concedes that “[t]he party opposing summary judgment
bears the burden of showing what facts must be identified in order to raise a
material issue of fact.” Plaintiff’s Identification of Genuine Issues of Material Fact
(“Plaintiff Ident.”) (Dkt. 28) at 4 (citing Hancock v. Montgomery Ward, 787 F.2d
1302, 1306 n.1 (9th Cir. 1986)). To accomplish that, however, Righthaven “must
do more than simply show that there is some metaphysical doubt as to the material
facts.” Matushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

10

Specifically, Righthaven must show “(1) that [it has] set forth in affidavit form the
specific facts that [it] hope[s] to elicit from further discovery, (2) that the facts
sought exist, and (3) that these sought-after facts are ‘essential’ to resist the
summary judgment motion.” Toxic Substances, 138 F.3d at 779.
Righthaven wholly failed to meet the Toxic Substances test. For example,
Righthaven argued at the District Court that three fact disputes prevented a
judgment on market harm: (1) whether anyone who would have otherwise
purchased a paper copy of the Article or viewed it online did not because of the
CIO post; (2) whether CIO’s use expanded public knowledge surrounding its
subject matter without harming the market for the original work; and (3) whether
CIO actually increased the market for the work. Plaintiff Ident. at 7-10.
None of these purported “disputes” must be resolved in order to reach
summary judgment, and Righthaven failed to introduce or identify any “particular
parts of materials in the record,” Fed. R. Civ. P. 56(c)(1), to show a dispute over
these facts.
B.

The District Court Correctly Concluded that CIO’s NonCommercial Transformative Educational Use of a Factual
Newspaper Article For Which Righthaven Had No Market Was a
Fair Use

Fair use is “a privilege in others than the owner of the copyright to use the
copyrighted material in a reasonable manner without his consent.” Harper & Row

11

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549 (1985) (citation omitted).
When evaluating fair use, courts examine four statutory factors and equitably
balance them to determine whether the challenged use is compatible with the
purposes of the Copyright Act. 17 U.S.C. § 107.
Righthaven offers the same flawed theory for each factor: that use of an
entire work precludes fair use. Opening Brief at 13 et seq. In Righthaven’s view,
“[t]he 100% duplication at-issue in Worldwide Church of God [v. Philadelphia
Church of God (WWCG), 227 F.3d 1110 (9th Cir. 2000)] transcended this Court’s
Ninth [sic] four-factor analysis . . . .” Id. at 18. Relying exclusively on WWCG,
Righthaven argues for an “almost per se pronouncement against a finding of fair
use in cases of 100% unauthorized replication.” Id. at 19.
Righthaven is wrong for at least three reasons. First, WWCG itself does not
stand for the broad proposition that use of an entire work precludes a fair use
finding. WWCG, 227 F.3d at 1118 (recognizing that “wholesale copying does not
preclude fair use per se”) (quoting Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148, 1155 (9th Cir. 1986) (citing Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417 (1984)).
Second, giving undue weight to any single factor undermines the crucial
balancing of the fair use analysis. Courts have overwhelmingly held that a
minimum of all four fair use factors must be properly weighed and considered. See

12

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (all four statutory
factors “are to be explored, and the results weighed together, in light of the
purposes of copyright.”). Indeed, courts must generally avoid bright-line tests. Id.
at 577 (“The task is not to be simplified with bright-line rules, for the statute, like
the doctrine it recognizes, calls for case-by-case analysis.”); Sony, 464 U.S. at 44849 (the fair use doctrine “enable[s] a court to apply an ‘equitable rule of reason’” to
copyright infringement claims) (internal quotations and citations omitted); Perfect
10 v. Amazon.com, 508 F.3d 1146, 1163 (9th Cir. 2007) (“We must be flexible in
applying a fair use analysis . . . ”). “The ultimate test of fair use is whether the
copyright law’s goal of promoting the Progress of Science and the useful Arts
would be better served by allowing the use than by preventing it.” United States v.
Am. Soc. of Composers, Authors, and Publishers, 599 F. Supp. 2d 415, 423-24
(S.D.N.Y. 2009) (citations omitted).
Third, Righthaven’s proposed one-factor test is belied by holdings from
courts at all levels finding fair use when an entire copyrighted work has been
used.7 In Sony, for example, the Supreme Court found fair use in the wholesale
reproduction of television programs. See Sony, 464 U.S. at 454-55. The Ninth
Circuit, for its part, has twice found fair use when search engines used entire

7

Righthaven cites to a statement in WWCG saying the court was unable to find
such cases. Opening Brief at 14. As shown here, there are plenty.

13

photographs for commercial purposes. See Kelly v. Arriba Soft Corp., 336 F.3d
811, 815, 820-21 (9th Cir. 2003); Amazon.com, 508 F.3d at 1165 (copying the
entire work in that circumstance is reasonable given the socially valuable purpose
of allowing consumers to find information on the Internet).
The Supreme Court and the Ninth Circuit are not alone in these
conclusions. See, e.g., A.V. ex rel. Vanderhye v. iParadigms, 562 F.3d 630, 642
(4th Cir. 2009) (use of student papers protected by fair use); Bond v. Blum, 317
F.3d 385, 393 (4th Cir. 2003) (use of an entire book protected by fair use); Núñez
v. Caribbean Int’l News Corp., 235 F.3d 18, 24 (1st Cir. 2000) (use of an entire
photograph “of little consequence to our [fair use] analysis”); Triangle Publ’ns,
Inc. v. Knight–Ridder Newspapers, Inc., 626 F.2d 1171, 1177 n.15 (5th Cir. 1980)
(“[T]he idea that the copying of an entire copyrighted work can never be fair use
‘is an overbroad generalization, unsupported by the decisions and rejected by
years of accepted practice.’”); Field v. Google Inc., 412 F. Supp. 2d 1106 (D.
Nev. 2006) (fair use protected Google’s commercial copying of 51 copyrighted
writings in their entirety). “[T]here is no general rule barring fair use of entire
works….” William Patry, PATRY

ON

FAIR USE § 5:3 (2010); see also Barton

Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156
U. PENN. L. REV. 549, 616 (2008) (27.3% of cases involving whole copies were
found to be fair use).

14

Thus, as a threshold matter, the Court should reject Righthaven’s rigid rule
precluding a fair use finding where an entire work is used.
C.

The Record Supports A Fair Use Finding.

Moving beyond Righthaven’s ill-conceived approach, an equitable
balancing of the four statutory factors supports a fair use finding in this case.
1.

Purpose and Character of the Use

In assessing the “purpose and character of a use,” courts evaluate the extent
to which the use “transforms” the original work, Campbell, 510 U.S. at 579, that
is, whether the use “does not ‘merely supersede the objects of the original
creation’ but rather ‘adds something new, with a further purpose or different
character . . . .’” Amazon.com, 508 F.3d at 1164 (quoting Campbell, 510 U.S. at
579). As the Ninth Circuit recognized in Amazon.com, where the use is made to
“serve a different purpose,” that use can be “highly transformative.” Id. at 1165,
1168 (exact replicas of images, reduced in size to thumbnails, found
transformative); see also Núñez, supra (modeling photo taken for portfolio
purpose was transformed into news when published in newspaper).
Here CIO, a non-profit group, used the Article for the transformative
purpose of educating those concerned with immigrant and refugee rights about

15

evolving issues in that area and to create an archive of related information.8
“Noncommercial uses to broaden a person’s understanding of an issue can be fair
use.” Newport-Mesa Unified School Dist. v. State of Calif. Dep’t of Educ., 371 F.
Supp. 2d 1170, 1177 (C.D. Cal. 2005).
Readers of CIO’s “Immigrant and Refugee Issues in the News” blog are
most likely Oregon residents interested in the non-profit’s mission. See
http://www.interculturalorganizing.org/what-we-do/civic-engagement (“Our civic
engagement program empowers immigrants and refugees throughout the
Portland Tri-County region”) (emphasis added) (last visited Jan. 10, 2012).
In contrast, even looking at its original context, the LVRJ published the
Article to provide timely, generalized information to Las Vegas residents about
events

in

their

local

community.

See

Compl.,

Ex.

1;

see

also

http://www.lvrj.com/about/work.html: “The Las Vegas Review-Journal is a
167,000-circulation morning daily serving the Las Vegas valley…”) (last visited
Jan. 10, 2012). This is a completely different audience from CIO’s, which
expanded

public

knowledge

about

immigration

enforcement

without

cannibalizing the market for the original work. That use strongly supports a fair
use finding. Sony, 464 U.S. at 454 (“to the extent time-shifting expands public

8

Righthaven has admitted that an archiving use is transformative. Righthaven’s
Identification of Genuine Issues of Material Fact (Dkt. 28) at 8 (“Undoubtedly, that
use would be different than the purpose of the use intended by the LVRJ.”).

16

access to freely broadcast television programs, it yields societal benefits”); Field,
412 F. Supp. 2d at 1119 (finding fair use where Google’s cache of works served
“different and socially important purposes” than the original works).
Righthaven’s vigorous reliance on the Ninth Circuit’s WWCG decision
betrays the weakness of its position on the first factor. In that case, a church
owned the copyright in a 380-page book written by its founder entitled “Mystery
of the Ages.” WWCG, 227 F.3d at 1112. The church stopped distributing the
book when certain of its doctrines changed. Id. at 1113. A splinter group
countermanded that directive by printing and distributing 30,000 copies of
“Mystery of the Ages.” Id. When the new group ignored the church’s cease-anddesist letter, the main church filed a copyright infringement action. Id. The
splinter group made no attempt to claim that its use was transformative or served
some different purpose than the original work, relying entirely on its non-profit
status as a defense. That, of course, was not enough, particularly given that group
used the distribution the original “Mystery of the Ages” in bulk to draw thousands
of members to its congregation, and those members tithed 10% of their income to
the new church. Id. at 1118.
Unlike WWCG, any connection between CIO’s donations and the Article is
far-fetched. The CIO’s website lists the reasons that people donate, and they do
not

relate

to

the

content

17

on

the

website.

See

http://www.interculturalorganizing.org/get-involved/donate/donate-to-cio/

(last

visited Jan. 10, 2012). Regardless, even indulging Righthaven’s speculation that
someone, somewhere gave money to CIO because of the article, that would not
overtake the obvious transformative, educational, and non-profit characteristics of
the use. See Campbell, 510 U.S. at 585 (rejecting bright-line rules concerning the
first factor and urging courts to look at the context of the use); Hustler, 796 F.2d
at 1152-53 (finding fair use “[e]ven assuming that the use had a purely
commercial purpose”); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 152223 (9th Cir. 1992) (“Accolade copied Sega’s code for a legitimate, essentially
non-exploitative purpose, and that the commercial aspect of its use can best be
described as of minimal significance.”); Sony Computer Entertainment America
v. Bleem, 214 F.3d 1022, 1028 (9th Cir. 2000) (copying for commercial purpose
fair use where “such comparative advertising redounds greatly to the purchasing
publics benefit with very little corresponding loss to the integrity of Sony’s
copyrighted material”); Kelly, 336 F.3d at 820 (fair use for commercial use of
photographs “due to the public benefit of the search engine and the minimal loss
of integrity to Kelly’s images”).
There is no meaningful factual dispute about the purpose and character of
the CIO’s use. By Righthaven’s own admission, the CIO is a non-profit entity
based in Oregon. Compl. ¶ 4 (“CIO is … a not-for-profit Oregon entity.”). And

18

there is no dispute that CIO’s website states that it “is a diverse, grassroots
membership organization working to build a multi-racial, multicultural movement
for

immigrant

and

refugee

rights.”

Compl.

Ex.

2;

see

generally

http://www.interculturalorganizing.org/ (last visited Jan. 10, 2012). The CIO
focuses

on

mobilization,

“education,
and

civic

engagement,

intergenerational

community

leadership

organizing

development.”

and
See

http://www.interculturalorganizing.org/who-we-are/mission-values/ (last visited
Jan. 10, 2012). Indeed, Righthaven does not dispute that CIO did not profit in any
way from the Article appeared on its blog—it merely claims that it would be error
to have a per se rule allowing non-commercial entities to infringe. Opening Brief
at 21.
The best that Righthaven could muster is an assertion that the CIO is
involved in “solicitation of donations and membership” elsewhere on its website.
Id. To even beging to dispute the evidence that CIO made a non-commercial use
of the Article, however, Righthaven would at least need to show that some user
gave money to CIO because the article was available on the CIO website. “To be
considered ‘commercial’ use, the use must ‘exploit[] the copyright for
commercial gain—as opposed to incidental use as part of a commercial
enterprise.’” Stern v. Does, No. 2:09-cv-01986-DMG-PLA, 2011 WL 997230, at
*10 (C.D. Cal. February 10, 2011) (quoting Elvis Presley Enters., Inc. v. Passport

19

Video, 349 F.3d 622, 627 (9th Cir. 2003)). Righthaven would never be able to
make that showing for a single person, let alone a substantial group. It cannot
demonstrate that CIO “profited” by using the Article under any rational
understanding of that term.
Even if CIO had so profited, that would not suffice to tip the first factor in
Righthaven’s favor. The defendant in every fair use case benefits from using the
original work. That was true of the photographs in Kelly and Amazon.com, the
computer software in Sega, the ad parody in Hustler, and the poems in Field. Nor
does the record reflect any “repeated and exploitative unauthorized copies of
copyrighted works [that] were made to save the expense of purchasing authorized
copies.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir.
2001).
Moreover, CIO’s good faith effort to benefit the public (evident from the
text of its site) weighs in favor of fair use. See Marcus v. Rowley, 695 F.2d 1171
(9th Cir. 1983); Lish v. Harper’s Magazine Found., 807 F. Supp. 1090 (S.D.N.Y.
1992); Field, 412 F. Supp. 2d at 1122. The court may consider “whether the
original was copied in good faith to benefit the public or primarily for the
commercial interests of the infringer.” Am. Geophysical Union v. Texaco Inc., 60
F.3d 913, 922 (2d Cir. 1994) (citation omitted). Likewise, “[c]ourts are more

20

willing to find a secondary use fair when it produces a value that benefits the
broader public interest.” Id.
2.

Nature of the Work

In assessing the “nature of the work” used, “[t]he law generally recognizes
a greater need to disseminate factual works than works of fiction or fantasy.”
Harper & Row, 471 U.S. at 563 (also noting greater fair use rights for works of a
published nature). Accordingly, where the original work is largely composed of
factual material, a finding of fair use is more likely. See, e.g., L.A. News Serv. v.
CBS Broad., Inc., 305 F.3d 924 (9th Cir. 2002) (republication of a video depicting
a news report was a fair use because it was informational rather than creative).
Here, the Article is short and largely reports facts. As such, it merits only
thin protection. Sony, 464 U.S. at 496-97 (“informational works, such as news
reports, that readily lend themselves to productive use by others, are less
protected than creative works of entertainment”); Harper & Row, 471 U.S. at 563
(“The law generally recognizes a greater need to disseminate factual works than
works of fiction or fantasy”); L.A. News Serv. v. KCAL-TV Channel 9, 108 F.3d
1119, 1122 (9th Cir. 1997) (video of the Reginald Denny beating was
“informational and factual and news,” weighing “substantially” in favor of fair
use).

21

Righthaven’s position is hardly saved by Los Angeles Times v. Free
Republic, 54 U.S.P.Q.2d 1453, 1467 (C.D. Cal. 2000), which it cites for the
proposition that “a news reporter must determine which facts are significant and
recount them in an interesting and appealing manner.” Opening Brief at 22. Free
Republic found that the second factor favored fair use, precisely because the work
was a piece of news reporting: “‘[T]he more informational or functional the
plaintiff’s work, the broader should be the scope of the fair use defense.’” Free
Republic, 54 U.S.P.Q.2d at 1467 (quoting NIMMER ON COPYRIGHT § 13.05[A][4]
(2010)). Here, as in Free Republic, the “second factor weighs in favor of a finding
of fair use of the news articles.” 54 U.S.P.Q.2d at 1467. Indeed, the Ninth Circuit
has regularly found that the second factor favors fair use when the original work
is news reporting. See L.A. News Serv. v. Reuters Television, Int’l., 149 F.3d 987,
994 (9th Cir. 1998); KCAL-TV, 108 F.3d at 1122; L.A. News Serv. v. Tullo, 973
F.2d 791, 798 (9th Cir. 1992).
3.

Amount and Substantiality

While the entire work was used here, as was necessary to fulfill CIO’s
mission: to educate its stakeholders about a wide range of immigrant-rights issues
and to archive that information in one place. As discussed above, supra Section
II.B, use of an entire work may be fair. Given the short length of the highly
factual article, it would have been impractical to select one of the facts contained

22

in the Article over another when reporting the article’s findings. See Compl.,
Ex. 2. “[Plaintiff] places great emphasis on the fact that [defendant] copied [the
work] in its entirety. This emphasis is misplaced. In considering the amount
copied under this factor, courts do not focus solely on the quantum of material
copied; instead, courts must determine whether the amount copied is ‘reasonable
in relation to the purpose of the copying.’” Belmore v. City Pages, Inc., 880 F.
Supp. 673, 678 (D. Minn. 1995) (quoting Campbell, 510 U.S. at 588).
As explained above, WWCG does not compel a different result. In finding
that use of an entire book weighed against fair use, WWCG distinguished Sony’s
finding that copying an entire work was appropriate because viewers had been
invited to watch television programs “in [their] entirety free of charge.” WWCG,
227 F.3d at 1118 (quoting Sony, 464 U.S. at 449-50). Here, the entire Article was
and remains available to viewers free of charge.9
4.

Effect on the Value and Market

This factor balances the benefit that the public will derive if the use is
permitted and the personal gain that the copyright owner will receive if the use is
denied. See MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981). The public
benefits from CIO’s use by gaining knowledge about immigrant-rights issues. See

9

A toolbar on the lvrj.com website invites consumers to read the article free of
charge and without any advertising by clicking on the “print this” icon. See
http://www.lvrj.com/news/questions-generated-by-287-g--97289294.html.

23

Sony, 464 U.S. at 451 (accepting fair use because a contrary result would “inhibit
access to ideas without any countervailing benefit.”).
And the market for the Article is not harmed by CIO’s use. In fact,
Righthaven has no licensing market for the work: Righthaven does not publish
news stories, but files copyright infringement lawsuits, as part of a business
model of “encouraging and exacting settlements from Defendants cowed by the
potential costs of litigation and liability.” Order, Righthaven v. Hill, No. 1:11-cv00211-JLK (Dkt. 16) (D. Colo. Apr. 7, 2011). Righthaven endeavors “to create a
cottage industry of filing copyright claims, making large claims for damages and
then settling claims for pennies on the dollar.” Order on Mot. for Recons.,
Democratic Underground, supra (Dkt. 94) at 2. Litigation use does not make a
market harm. See Video-Cinema Films v. CNN, No. 98 CIV. 7128IBSJ, 2001 WL
1518264, at *9 (S.D.N.Y. Nov. 28, 2001) (finding no market harm when only
payments were settlements to avoid litigation).
Small wonder that Righthaven provided no evidence or even alleged any
actual harm in the district court proceedings. Righthaven v. CIO, No. 2:10-cv01322-JCM-LRL, 2011 WL 1541613, at *5 (D.Nev. 2011) (noting that “plaintiff
has failed to allege that a ‘market’ exists for its copyright at all”). At the
December 28, 2010 OSC hearing, the District Court asked Righthaven directly
whether or not it had a licensing market for the work. Tr. of Hr’g on Order to

24

Show Cause re Fair Use, (Dkt. 27) at 24:11-24. Righthaven’s counsel said he
would have to check, but that this was a subject for discovery. Id. However, in its
subsequent brief (Dkt. 28), Righthaven did not identify this as a disputed fact, or
suggest that it needed discovery on this issue.
Indeed, in a related case, Righthaven admitted that “Righthaven has not
engaged in the commercial exploitation of news articles.”

Righthaven’s

Response to DiBiase’s Motion to Compel, DiBiase, supra (Dkt. 68) at 5. 10
“Materials from a proceeding in another tribunal are appropriate for judicial
notice.” Biggs v. Terhune, 334 F.3d 910, 915 n. 3 (9th Cir. 2003).
Thus, by any measure, Righthaven has failed to meet its burden. See
Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006) (fourth factor “greatly favors”
fair use where the copyright holder was not commercially exploiting photograph);
Field, 412 F. Supp. 2d at 1121 (fourth factor favored defendant where there was
“no evidence of any market for [the copyright holder’s] works.”); NIMMER,
§ 13.05[A][4] (“On occasion, the lack of market harm is apparent.”).11

10

Righthaven did briefly contract for a $1/year license fee in Righthaven’s
May 2011 amendment to its Strategic Alliance Agreement with Stephens Media,
whereby the original publisher would start to pay to license its own articles.
Pahrump Dkt. 26, Exh. 3. The May 2011 amendment was superseded by a July
2011 amendment, which removed this nominal license fee provision. Pahrump
Dkt. 57, Exh. 1.
11
Numerous courts have determined that Righthaven is not in fact the owner of
copyrighted works purportedly assigned by Stephens Media. See, e.g., Democratic

25

Grasping at straws, Righthaven asks the Court to adopt a false
“presumption” of harm based on CIO’s alleged commercial use of the Article. In
support, Righthaven cites in Sony, 464 U.S. at 451, but ignores actually
dispositive Supreme Court jurisprudence. Opening Brief at 23-24. Specifically, in
its 1994 Campbell decision, the Supreme Court clarified that no presumption
applies absent “verbatim copying of the original in its entirety for commercial
purposes,” since absent such “mere duplication” there was no basis to presume
that the copy “serves as a market replacement” for the original. Campbell, 510
U.S. at 591 (emphasis added). When, “on the contrary, the second use is
transformative, market substitution is at least less certain, and market harm may
not be so readily inferred.” Id.
Accordingly, Campbell reversed the Court of Appeals’ presumption of
market harm, in a decision that decisively rejects Righthaven’s assertion of a
presumption here. As the Supreme Court stated, “[i]f, indeed, commerciality
carried presumptive force against a finding of fairness, the presumption would
swallow nearly all of the illustrative uses listed in the preamble paragraph of

Underground, 791 F. Supp. 2d 968, Hoehn, 792 F. Supp. 2d 1138. Even if one
considered the publisher’s market, CIO did not harm the LVRJ’s market for the
work. The LVRJ elected to give the Article away for free on the Internet and
continues to do so to this day. It is undisputed that the LVRJ operates in Las Vegas
and CIO is in Portland, Oregon. Both focus on a local market that does not overlap.
Because LVRJ does not compete in the Oregon market, it is difficult to fathom a
scenario in which CIO’s use harmed the LVRJ.

26

§ 107, including news reporting, comment, criticism, teaching, scholarship, and
research, since these activities ‘are generally conducted for profit in this
country.’” Campbell, 510 U.S. at 584 (citations omitted).
Moreover, presumptions of harm are now heavily disfavored in intellectual
property cases, including copyright litigation. In eBay Inc., supra, the Supreme
Court rejected a long-standing Federal Circuit rule that courts should nearly
always issue injunctions when a patent right is violated. Instead, the Court held
that there is no presumption of irreparable harm, and where patent holders do not
make products but instead do nothing but file lawsuits, the burden is squarely on
the patent holder to prove harm.
Since eBay, both this Court and other Circuits have applied this rule to
deny the presumption of harm for copyright injunctions. See Salinger v. Colting,
607 F.3d 68, 75, 79 (2d Cir. 2010) (applying eBay to copyright case); Perfect 10,
Inc. v. Google, Inc., 653 F.3d 976, 980-81 (9th Cir. 2011) (agreeing with
Salinger); Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989,
998-99 (9th Cir. 2011) (same); CoxCom, Inc. v. Chaffee, 536 F.3d 101, 112 (1st
Cir. 2008); Christopher Phelps & Assocs. v. Galloway, 492 F.3d 532, 543 (4th
Cir. 2007). Even courts prior to the eBay line of cases expressed skepticism
toward presumptions of harm for the fourth factor when the copyright holder
failed to demonstrate the existence of a commercial market for its work. Am.

27

Geophysical Union, 60 F.3d at 930 (fair use favored where potential harm “would
be to a potential market or value that the copyright holder has not typically sought
to, or reasonably been able to, obtain or capture”); see also Koons, 467 F.3d at
258; Field, 412 F. Supp. 2d at 1121-22.
Here, Righthaven argues that it is entitled to a presumption of harm that
directly contradicts the rule in eBay, Salinger, and Google. Under those
precedents, the mere ownership of a copyright does not entitle a plaintiff to any
presumptions of harm, even when infringement is beyond dispute. Copyright
plaintiffs must independently prove harm with admissible evidence, an
opportunity Righthaven was repeatedly offered and failed to take up.
Without any presumptions and without any showing that there was either a
market for the work or harm to said market, Righthaven cannot justify
overturning the District Court’s finding on the fourth factor.
5.

The Public Interest Favors A Fair Use Finding

Finally, the fair use analysis must consider the public interest and the
purposes of copyright law. The “Supreme Court ... has ... directed [courts] to be
mindful of the extent to which a use promotes the purposes of copyright and
serves the interests of the public.” Amazon.com, 508 F.3d at 1166 (citations
omitted). The central purpose of copyright, of course, is “[t]o promote the
Progress of Science and useful Arts,” U.S. CONST. art. I, §8, cl. 8, and to serve

28

“‘the welfare of the public.’” Sony, 464 U.S. at 429 n.10 (quoting H.R. Rep.
No. 2222, 60th Cong., 2d Sess. 7 (1909)). Indeed, the doctrine of fair use was
developed to provide a “means of balancing the need to provide individuals with
sufficient incentives to create public works with the public’s interest in the
dissemination of information.” Hustler, 796 F.2d at 1151. Thus, fair use serves to
ensure that courts “avoid rigid application of the copyright statute when, on
occasion, it would stifle the very creativity which that law is designed to foster.”
Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1385 (6th Cir.
1996) (en banc), cert. denied, 520 U.S. 1156 (1997) (citation omitted).
The CIO’s use serves the public welfare by providing factual information
on an important issue, enhancing in turn its members’ ability to advocate more
effectively for immigrant and refugee rights. Righthaven’s use, by contrast,
subverts the Copyright Act. As the District Court correctly noted, “Plaintiff's
litigation strategy has a chilling effect on potential fair uses of Righthaven-owned
articles, diminishes public access to the facts contained therein, and does nothing
to advance the Copyright Act’s purpose of promoting artistic creation.” CIO,
2011 WL 1541613 at *5. Moreover, given that Righthaven neither creates not
distributes actual creative expression, it is ill-placed to invoke the public interest
in encouraging the progress of science and the useful arts.

29

IV.

Conclusion
For the reasons stated above, the District Court’s judgment should be

affirmed.
Dated: January 13, 2012

By: /s/ Kurt Opsahl
Kurt Opsahl
Corynne McSherry
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amici Curiae

30

CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS
PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows:
1.

This Brief of Amici Curiae In Support Of Affirmance complies with

the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief
contains 6,806 words, excluding the parts of the brief exempted by Fed. R. App.
P. 32(a)(7)(B)(iii); and
2.

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

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft
Word 2011, the word processing system used to prepare the brief, in 14 point
Times New Roman font.
Dated: January 13, 2012

By: /s/ Kurt Opsahl
Kurt Opsahl
Corynne McSherry
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amicus Curiae

31

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on January 13, 2012.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: January 13, 2012

By: /s/ Kurt Opsahl__
Kurt Opsahl
Corynne McSherry
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amicus Curiae

32