The music and publishing industries might think they’re protecting their copyright interests by filing an amicus brief in Righthaven v. Hoehn, but they are still supporting a copyright troll that is dying a slow death.
Righthaven CEO Scott Gibson.
The RIAA and AAP have filed an amicus brief (a method of supplying critical information to a court) in the case Righthaven v. Hoehn, claiming that the court has is on the verge of establishing a disturbing definition of “fair use,” even as Stephens Media (Righthaven’s newspaper partner in copyright trolling) admitted that the lawsuits were wrong.
For those unfamiliar with Righthaven and Stephens Media, a Vietnam veteran named Wayne Hoehn reposted on his blog a November 2010 Las Vegas Review-Journal editorial in its entirety, a publication which is owned by Stephens Media. Stephens Media, of course, had entered into a partnership with Righthaven to file copyright infringement lawsuits which would lead to settlements (some as much as $150,000).
By March 24, 2011, 255 lawsuits had been filed. While a number of defendants settled with Righthaven, the Electronic Frontier Foundation (EFF) took up the cause of Democratic Underground and other defendants, arguing that excerpted material was allowed under fair use. The Democratic Underground case was dropped after it was discovered that Righthaven did not own the copyrights in question.
The RIAA/AAP amicus brief was submitted out of an “interest in ensuring that courts apply consistently and fairly.”
The brief goes on to say, “As both copyright owners and users of copyrighted materials, Amici’s members also have an interest in promoting a balanced and pragmatic approach to fair use as an important affirmative defense to copyright infringement.”
They asked the 9th Circut District Court of Appeals to vacate the portion of the district court’s order that granted Hoehn’s motion for summary judgment on fair use. The industry associations claim that the 9th Circuit’s fair use analysis was flawed because “the parties before the court, lacking any authority to exploit the copyrighted work, were in no position to present relevant arguments on the critical issue of the impact of the defendant’s use upon exploitation.” In other words, no copyright owner or party with authority to exploit the work (i.e., claim “fair use”) was present in the court—Hoehn satisfied none of those definitions.
One understands the RIAA’s position given the degree of music piracy, and AAR must be nervous as well because of the explosion in digital content delivery of books, but it is rather astounding that the two associations would weigh in on the side of the copyright troll Righthaven.
This certainly will not endear them to consumers of music and literature and might well have the adverse effect of encouraging further piracy as a protest.
Read the amicus brief here.
