Summary:

Even though controversial copyright enforcer Righthaven has already lost two lawsuits on fair use grounds, not every defendant that chooses…

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Even though controversial copyright enforcer Righthaven has already lost two lawsuits on fair use grounds, not every defendant that chooses to fight back is going to get a quick win. A lawsuit against an Urdu-language web forum over its copy of the Las Vegas Review-Journal’s “Vdara death ray” illustration will move forward, following a judge’s ruling.

Righthaven sued Azkar Choudhry back in December, saying that an image at his website, GupShup forums, was illegally copied from the Las Vegas Review-Journal, a newspaper that sells its copyrights so that Righthaven can file lawsuits. Choudhry responded, arguing that his site’s use of the image–which was an “in-line link” automatically added via an RSS feed–is fair use.

U.S. District Judge James Mahan declined to give Choudhry a win at the early summary judgment stage. It’s worth noting because another Righthaven case being overseen by Mahan–against an Oregon non-profit–did win on summary judgment. What’s the difference? The main point seems to be that Mahan is undecided about whether the use of the image was “commercial” or not, because Choudhry’s website does make money off ads, albeit a very small amount. Choudhry’s lawyer says in court papers that the site made just enough to pay its expenses in 2009 and 2010, and lost money every year before that. For Choudhry, the website is “a labor of love” and a service to its hundreds of thousands of users.

Another issue is that while the article copied by the Oregon non-profit was solely informational, Mahan believes that the image in this case could be seen as a more “creative” work. Under a fair use analysis, creative works are entitled to more protection than straightforward informational works.

This development doesn’t mean that Righthaven will win the case, but it does mean that the case may proceed to trial after sides will gather more evidence to support their arguments.

In fact, Mahan emphasizes a few points that are actually good for Righthaven defendants. Specifically, he rules that one key fair use factor–impact on the market for the copyrighted work–weighs in the defendant’s favor. “The plaintiff has failed to allege that a ‘market’ exists for its copyright exists at all, and the court declines to simply presume the existence of a market,” writes Mahan in his order [PDF].

GupShup is an Urdu word meaning “gossip” or “casual talk,” and the site is basically a discussion forum, with posts in both English and Urdu. About 40 percent of its users are from Pakistan and India, 18 percent are from the U.S., and the remainder from other parts of the world.

Also, Mahan strikes Righthaven’s demand that Choudhry’s website be handed over because of the alleged copyright infringement. Righthaven has made that demand routinely in its lawsuits, but Mahan is now the second judge to rule that such a punishment isn’t allowed under copyright law.

More legal analysis is available at Prof. Eric Goldman’s law blog, which first reported the opinion.

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