The Association of American Publishers (the “AAP”) and the Recording Industry Association of America (the “RIAA”) asked the Ninth Circuit on December 5, 2011, for permission to file an Amici Curie brief in Righthaven’s appeal of the dismissal of its copyright infringement case against a blogger who posted the entire text of a Las Vegas Review Journal article on his blog without permission. The case is Righthaven v. Hoehn, Docket No. Case No. 2:11-CV-00050-PMP-RJJ, Nevada District Court. Righthaven is the so-called copyright “troll” that has engendered a lot of controversy because it has brought more than 200 copyright cases against bloggers, non-profits, and other defendants for supposedly using copyrighted content originally published by the Las Vegas Review Journal and the Denver Post without permission. Righthaven doesn’t actually own this content; it only owns the “naked” right to sue for infringement of the copyrights in the content.
In the case below, the Nevada district judge held that Righthaven lacked standing to bring its claims and that Hoehn was entitled to summary judgment on the infringement claims because its use should be deemed “fair use.” The district court focused on the fact that the blogger used the article for a non-commercial purpose, he had used it merely to convey information, and there was no showing that the market for the article had been damaged by the blogger’s post. The industry groups take issue with the fact that the district judge reached the issue of “fair use” at all, given his holding that Righthaven lacked standing to bring the case. The Amici assert that it is not reasonable to base a finding that the use caused no harm to the market for the content given that a so-called “troll” cannot adduce evidence about markets in which it can’t participate and have no incentive to understand.