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

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

There are second chances in life, though, and Righthaven got one yesterday. The company's new lawyer, Erik Syverson, argued that the US Court of Appeals for the 9th Circuit should overturn Righthaven's losses in two cases: the DiBiase case, defended by the Electronic Frontier Foundation, and the Hoehn case, defended by Las Vegas attorney Marc Randazza. Yesterday's case is the first Righthaven case to be argued at the appellate level.

Righthaven’s strategy is “too cute by a half”

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

While one can't be 100 percent sure of the result of a case based on judges' comments, the questions in this case were very critical of Righthaven. It would be a real shocker if Righthaven was found to have standing to sue.

(The appeals court panel consisted of judges Richard Clifton, Diarmuid O'Scannlain, and Stephen Trott. Because the audio recording does not identify which judge is speaking, the judges are not quoted by name in this article.)

On fair use, a tougher argument

The Righthaven v. Hoehn case was actually won on two separate grounds: first, that Righthaven didn't have standing to sue, and second, that Hoehn's posting of the Review-Journal article was "fair use," even though he posted the entire piece. While the judges certainly seemed receptive to the idea that Righthaven never had standing, they didn't seem too friendly to the idea that Hoehn's use of the article was fair use.

Hoehn had posted an op-ed about public employee pensions to the forums in madjacksports.com. (The op-ed was written by former Review-Journal publisher Sherman Frederick, who once promised "copyright thieves" they would meet his "little friend called Righthaven.") A district court judge found that the reposting of the whole article was fair use, because it spurred discussion of an important public policy issue, and it didn't compete with the original product.

The appeals court seemed less receptive to that point of view during oral arguments yesterday. First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

Randazza agreed that wouldn't be fair use. It would depend on the length and character of the work, said Marc Randazza, who argued the fair use portion of the appeal.

Overall, the judges didn't seem to favor the idea that Hoehn's posting of the full article, even in a comments section, might be fair use. But if Hoehn and DiBiase succeed on the standing issue—and it seems likely they will—fair use might not even come up. "If there's no standing, there's no standing," said Randazza, in a post-argument interview with Ars.

Hoehn won a $34,000 judgment against Righthaven, which still hasn't been paid and has ballooned to almost $200,000, said Randazza. Righthaven, and possibly Gibson and Stevens Media, are probably deeper in the hole than that. "I'm not the only one with a judgment against him," noted Randazza. Righthaven's trademark and website have already been auctioned off for a few thousand dollars each, said Randazza. Even the Righthaven "copyrights"—flawed assignments and all—have been sold, despite their dubious value.

"You'd be surprised," said Randazza. "Some people want to buy them just to own one of Righthaven's bogus copyrights, as 'legal memorabilia,' for want of a better way to describe it."

So why are Gibson and Righthaven still fighting at this point?

"It's a tantrum, and an attempt to salve his ego," said Randazza. "And I can almost respect that."

In any case, Gibson's reputation in the legal community has taken a serious hit. "I moved to Las Vegas and became instantly popular for being the guy who's smacked Steve Gibson around," said Randazza. "I go to bar functions and people high-five me for screwing with him. This guy staked what he had, as far as a reputation, on this scheme."

Listing image by Jesse Bell / flickr