As the holiday season approaches, the Righthaven law firm has opted to give peace a chance. The scan-for-content-and-sue outfit has extended an olive branch to one of its latest targets—the Democratic Underground web site. Like the law firm's previous victims, DU posted some text from Righthaven's main client, the Las Vegas Review Journal, and was consequently sued for cash under the claim of copyright infringement.

But suddenly Righthaven has had a change of heart, as its attorneys told the United States District Court of Nevada this week. The operation has submitted a motion to the dismiss the suit, "all in the spirit of judicial economy."

"Though Righthaven firmly believes that the Defendants are liable for copyright infringement, the non-holistic [partial] nature of the Defendants' unauthorized textual reproduction is such that reasonable minds may disagree as to the legitimacy of a fair use defense," the firm told the judge.

Abuse of process

Before you place this gesture on a par with Ebenezer Scrooge giving Bob Cratchit his raise, there's something else you should know. This call for a voluntary dismissal comes after a significant defeat for the company.

In late October, Righthaven went after a Las Vegas based realty blogger named Bob Nelson, who fought back. Nelson insisted that his Las Vegas Journal excerpt had been fair, and accused the company of "using these lawsuits as a source of revenue. Such abuse of legal process should be rejected."

Judge Larry Hicks concurred on the fairness question, noting that Nelson's excerpt was limited (in other words, "non-holistic"), factual, and did not threaten the piece's market value. Thus: "Nelson's use falls within the Fair Use doctrine," he declared.

Righthaven settled with Nelson, but now finds itself in a rather tricky situation. According to the law firm's plea, Democratic Underground is seeking a counterclaim in this case—specifically a declaratory judgment of no copyright infringement. That can't be something that Righthaven wants on top of the Nelson decision—if the outfit wants to stay in the search-for-excerpts-and-sue business.

And then there's the possibility of DU seeking legal fees. So it appears that the time for strategic retreat has arrived. Righthaven wants the case dismissed, and all parties responsible for their own attorney costs (in other words, Righthaven won't have to pay Democratic Underground's).

Threshold for frivolity

We'll be very interested in seeing the court's response to this paragraph from Righthaven's plea, which insists that DU's attorneys are not entitled to statutory attorney fees because:

(1) the Defendants' success in these actions is attributed to Righthaven's unilateral dismissal efforts which would not exist but for Judge Hicks' intervening decision in Realty One, (2) Righthaven's copyright action does not remotely approach the threshold for frivolity, (3) Righthaven has not engaged in any improper conduct and Righthaven's current dismissal efforts are motivated by judicial economy, (4) there is no question that the merits of Righthaven's copyright claim are objectively reasonable, and (5) the present facts do not give rise to considerations of compensation and deterrence. Simply stated, the imposition of attorneys' fees under these circumstances would represent a substantial deviation from the underlying purpose of the Copyright Act.

This is a company that has sued over 150 parties, some of who just published a few sentences from the Vegas Review, or who were even sources for the articles that they reproduced. So some clear responses from the court on what constitutes "frivolity," an "objectively reasonable" claim, and the "underlying purpose of the Copyright Act" might be just what everyone needs about now—especially Righthaven's next round of victims.

"In this case, it appears to be in the best interests of Righthaven—and in the best interests of the Defendants—to not exhaust judicial resources on the instant lawsuit and instead allow this matter to be voluntarily dismissed, with prejudice," Righthaven insists.

It's up to Democratic Underground to decide what's in its "best interests" now. We contacted the group, but received no reply.