A Nevada judge has given copyright troll Righthaven until mid-December to explain why one of the law firm's targets wasn't exercising its right to Fair Use when it republished a newspaper article on its website.

"The court hereby orders the plaintiff to show cause why this case should not be dismissed under the 17 U.S.C. § 107 Fair Use exception," US District Judge James C. Mahan of Nevada told Righthaven on November 15. Mahan also issued a "show cause" hearing on the suit for December 15.

"Failure of plaintiff to appear shall result in the imposition of sanction for that party," the judge's Order warns.

All evidence and documentation

Righthaven specializes in demanding cash and, in some instances, the domains of websites that republish all or even portions of articles from the Las Vegas Review-Journal. Its prey in this instance is the Center for Intercultural Organizing of Portland, Oregon, which does advocacy for immigrants and refugees.

CIO allegedly reprinted a Las Vegas Review article on the police treatment of illegal immigrants in the Las Vegas area on its Google Blogspot account (which is now only viewable by invitation). From the exhibit that Righthaven submitted, it appears that the group republished the entire piece.

Righthaven insists that it holds the copyright to the article, thus CIO must pay, and pay big. The law firm petitioned the court in early August to have the non-profit be enjoined from publishing the work and pay Righthaven statutory damages. But it demanded that CIO fork over "all evidence and documentation relating in any way to the Defendants' use of the Work, in any form, including, without limitation, all such evidence and documentation relating to the Website."

That's not all. Righthaven wants "All evidence and documentation relating to the names and addresses (whether electronic mail addresses or otherwise) of any person with whom the Defendants have communicated regarding the Defendants' use of the Work." And, "All financial evidence and documentation relating to the Defendants' use of the Work."

And not only that, but the court must "direct Network Solutions and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven."

So basically we're talking about cash, the domain, and possibly sensitive financial and personal data relating to the non-profit's advocacy practices.

Purposefully directed

The Center's attorneys filed a Motion to Dismiss Righthaven's action on August 30. Righthaven wasn't really the holder of "the work," until after it was allegedly discovered that CIO posted a copy of the article on its website—"therefore, Plaintiff does not have standing to sue because it did not own a copyright in the material until after the alleged infringement occurred," the filing insists.

In addition, CIO charges that the suit fails to make the case that the Oregon-based non-profit falls under Righthaven's Nevada based jurisdiction. Although the law firm insists that the article was "purposefully directed at Nevada residents," CIO denies that this was its intent.

What's interesting about the Nevada court's latest action is that Judge Mahan is leapfrogging over the Center's standing and jurisdiction arguments and turning the matter into a Fair Use issue. This is another setback for Righthaven, which in late October went after a Las Vegas-based realty blogger Bob Nelson. The latter insisted that his Las Vegas Review-Journal excerpt had been proper, and accused the company of "using these lawsuits as a source of revenue."

A Nevada district court judge concurred on the fairness question, noting that Nelson's excerpt was limited, factual, and did not threaten the piece's market value. "Nelson's use falls within the Fair Use doctrine," he declared.

Non-holistic

That sent Righthaven running for cover, asking the court on November 15 to dismiss a similar lawsuit it had brought against the Democratic Underground website, on the proviso that both parties pay for their own legal fees, and DU's countersuit also be set aside.

"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.

Although Righthaven settled with Nelson, it has warned that it plans to appeal any Fair Use verdict for Nelson's co-defendant, Realty One, to the Ninth Circuit Court of Appeals. Now it has to explain why the alleged republication of a full Las Vegas Review-Journal article isn't Fair Use.

Maybe it can, or maybe it's facing a court that is tired of these suits and wants to be done with them.