March 2011 Quick Links, Part 1 (Special Copyright Edition)

By Eric Goldman

* Big news #1: Judge Chin rejected the Google Book Search settlement. The opinion. If you read only one commentary about the rejection, it should be James Grimmelmann’s recap. My 2008 comments on the settlement.

* Big news #2: The US Supreme Court granted certiorari in Golan v. Holder. The SCOTUS Blog recap.

* Big news #3: In Righthaven v. Center for Intercultural Organizing, Judge Mahan granted a dismissal on fair use grounds even though the defendant republished 100% of a 33 paragraph article. Steve Green’s writeup of the hearing. We’re still waiting for the court’s official opinion, and we’ll have to see how this ruling fares on appeal. If this ruling stands, it eviscerates much of Righthaven’s basic legal argument and should accelerate the company’s demise. See also my October writeup of Righthaven v. Realty One, the other defense win on fair use.

More Righthaven news this month:

– Righthaven sued Eriq Gardner, a reporter and blogger for The Hollywood Reporter, for showing a court filing which contained a reproduction of the TSA pat-down photo. Righthaven voluntarily dismissed the lawsuit within 24 hours. Ars Technica tells the story of this pathetic flip-flop. Righthaven claimed that filing the complaint was a “clerical error.” However, this isn’t like a typo in a complaint. An erroneously filed complaint seems like a prima facie violation of Rule 11’s obligation to verify the facts before signing the complaint; and it may constitute a breach of the signing lawyer’s obligations under the applicable ethics rules. It will be interesting to see if this “mistake” leads to any discipline for the errant lawyers. Meanwhile, calling the suit a clerical error seems pretextual. While the lawsuit was still pending, Righthaven’s CEO didn’t give Joe Mullin any indication that the suit was a mistake.

Righthaven v. Vote for the Worst, 2011 WL 1304463 (D. Nev. March 30, 2011). The court rejects a challenge to Righthaven’s allegedly defective copyright assignment process. More importantly, the court applied the personal jurisdiction Effects Test even though the copyright infringement is based on a user’s upload:

It is undisputed however, that provides multiple user forums and message boards wherein content can be freely posted at the user’s discretion. Defendants do not articulate or implement any form of copyright enforcement policy or impose any rules or guidelines directed towards controlling copyright infringements that may occur on their website….Defendants cannot claim that their lack of knowledge of infringement, when such activity is reasonably foreseeable, can shield them from being subject to this forum’s jurisdictional reach.

This is a bad ruling. The Effects Test should require the defendant’s knowing efforts to direct activity into the forum state. If a user does the posting, then the site operator lacks the requisite intent.

Righthaven, LLC v. Mostofi, 2011 WL 1098971 (D. Nev. March 22, 2011). Another refusal to dismiss personal jurisdiction:

It would be a substantial burden on Defendant to have to litigate in Nevada. However, all of the other factors favor Plaintiff. Arguably, the forum state has an interest in adjudicating an infringement upon a news article originated by the forum state’s largest local newspaper publisher written about actions taken by the Nevada State Bar. The Las Vegas Review Journal’s subscribers are purportedly primarily residents of the forum state of Nevada and the LVRJ advertisers consist mainly of local Nevada businesses. Any infringement could reasonably be expected to affect them as well. Finally, Plaintiff has named numerous Defendants in other identical suits each from numerous other states. “The interstate judicial system would benefit from the efficient resolution of this case in the same forum as the others. This would serve fundamental substantive common social policies.”, 2010 WL 4386499, at *4. Accordingly, the Defendant has not overcome the presumption of reasonableness and this Court has personal jurisdiction over Defendant.

– As Wendy Davis reports, Righthaven is suing other newspaper publishers—its prospective customers. Hasn’t Righthaven learned from the RIAA that suing prospective customers doesn’t improve future sales?

* Also on the personal jurisdiction front, and consistent with the broad jurisdictional rulings in the Righthaven cases, in Penguin Group v American Buddha, New York’s highest state court ruled that the state’s long-arm statute says that online copyright infringement lawsuits can take place in the copyright owner’s home court.

* Two rulings in Arista Records LLC v. Lime Group LLC that appear to slightly limit Limewire’s damages exposure. First, on March 11, the court held that copyright owners are only entitled to one statutory damage per work infringed, regardless of the number of P2P file sharers who shared it. Then, on March 18, the court says (2011 WL 1097558):

If a LimeWire user infringed a work prior to the Registration of the copyright for that work, Plaintiffs are barred from seeking a statutory damage award from Defendants with respect to that work. However, Plaintiffs may still seek to recover actual damages for those works, and will thus be compensated in the event that those works were infringed on the Lime Wire system.

My previous blog post on the case.

* Updates on the lawless DHS domain name seizures (my prior blog post). First, Techdirt explains why the DHS seizures are illegal. Second, the DHS arrested Brian McCarthy for criminal copyright infringement for streaming sports, but as Techdirt explains, this too looks like a lawless action.

* Stern v. Does (C.D. Cal. Feb. 10, 2011). A 23 word listserv posting isn’t copyrightable; and if it is, forwarding to a non-list member was fair use. (Naturally, it was a lawyer who authored the post and advanced the tendentious claim). The court awarded attorneys’ fees to the defense. A sad commentary on copyright adjudication: it took a 30 page opinion to resolve the legal issues of forwarding a 23 word email.

* IP Czar Victoria Espinel issued more recommendations (blog post; white paper).

* Rebecca Black has a surprise (and painful) viral hit on YouTube. Let the copyright battles begin!

* Copyright geeks, rejoice—a full scan of Selden’s Condensed Ledger (1861) from Baker v. Selden is now online!