Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`RIGHTHAVEN, LCC, a Nevada limited
`liability company,
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`2:10-CV-1322 JCM (LRL)
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`Plaintiff,
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`v.
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`KAYSE JAMA, an individual, and
`CENTER FOR INTERCULTURAL
`ORGANIZING, a non-profit
`organization,
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`Defendants.
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`ORDER
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`Presently before the court is the order to show cause (doc. #12) why the court should not
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`dismiss the instant action under the 17 U.S.C. § 107 fair use exception. Plaintiff Righthaven filed
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`a response (doc. #14) to the order to show cause, alternatively requesting a chance to conduct
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`discovery pursuant to Federal Rule of Civil Procedure 56(f). The court also permitted (doc. #19)
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`Professor Jason Schultz to file an amicus brief (doc. #21).
`I.
`Background
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`This dispute centers on a newspaper article, first published by the Las Vegas Review-Journal
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`(“LVRJ”) on June 28, 2010. On July 8, 2010, defendant Center for Intercultural Organizing (“CIO”)
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` Under the recent amendments to the Federal Rules of Civil Procedure, the court notes that
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`the proper citation should be Rule 56(d), which allows the court to allow time for discovery where
`“a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts
`essential to justify its position. . . .”
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`James C. Mahan
`U.S. District Judge
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 2 of 8
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`posted the article in its entirety on the CIO website. Thereafter, on July 26, 2008, the LVRJ assigned
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`ownership of the copyright to plaintiff Righthaven, which filed suit against CIO on August 5, 2010,
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`alleging copyright infringement under 17 U.S.C. § 501.
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`The disputed article discusses whether police in the Las Vegas area were targeting minorities.
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`Defendants, an Oregon nonprofit organization dedicated to helping immigrants become aware of
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`immigration-related issues in the United States, posted the article in its entirety on their website,
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`purportedly to educate the public about the issues contained therein.
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`On December 28, 2010, this court held a show cause hearing, which was adjourned to give
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`plaintiff an opportunity to file a list of disputed, material facts. (Doc. #27). Thereafter, plaintiff filed
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`a response (doc. #28), to which the defendants (doc. #29) and the amicus (doc. #30) replied. The
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`court again held a hearing on the order to show cause on March 18, 2011, (doc. #33) and, having
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`considered the papers and pleadings submitted, as well as the oral arguments of the parties present,
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`now finds that there are no disputed material facts to present a genuine issue for trial. Accordingly,
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`the defendants are entitled to judgment as a matter of law.
`II.
`Legal Standard
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`Summary judgment is appropriate when, viewing the facts in the light most favorable to the
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`nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to
`judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); FED. R. CIV. P.
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`56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the
`absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323
`(1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002) (articulating the standard for
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`authentication of evidence on a motion for summary judgment).
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`The court may “[a]fter giving notice and a reasonable time to respond . . . (1) grant summary
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`judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider
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`summary judgment on its own after identifying for the parties material facts that may not genuinely
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`be in dispute.” FED. R. CIV. P. 56(f). Here, the court has invoked subdivision (f) and given the parties
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`a reasonable time to respond to the order to show cause. Although the plaintiff has requested
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 3 of 8
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`discovery, noting that the party against whom summary judgment is granted must be “on notice that
`she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds
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`that further discovery is unnecessary, as the court already possesses enough information to rule as
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`a matter of law on the issue of fair use.
`III.
`Fair Use Analysis
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`A plaintiff must satisfy two requirements to present a prima facie case of copyright
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`infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers
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`violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a).
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`However, even where a plaintiff has alleged a prima facie case of copyright infringement, the
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`defendant may refute the claim if the defendant has engaged in a fair use of the material.
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`The fair use doctrine is an affirmative defense to a claim of infringement, which protects
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`certain uses of a copyright. The court considers four factors to determine whether the use of a
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`copyrighted work is fair: “(1) the purpose and character of the use, including whether such use is of
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`a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
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`and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17
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`U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote
`the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v.
`Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007) (internal citations omitted).
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`“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact,
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`or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach
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`only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies
`as a fair use of the copyrighted work.” Los Angeles News Serv. v. KCAL-TV Channel 9, 108 F.3d
`1119, 1120 (9th Cir. 1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148,
`1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,
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`559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff
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`Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion – that the
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 4 of 8
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`alleged infringement qualifies as fair use.
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`(A)
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`Purpose and Character of the Use
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`“[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news
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`reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an
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`infringement of copyright.” 17 U.S.C. § 107. This first factor addresses whether the new work
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`“replaces the object of the original creation or instead adds a further purpose or different character
`. . . [and] is ‘transformative.’” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir.
`2001) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). This factor also
`requires the court to determine whether the new use is commercial or non-commercial. Id.
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`First, CIO’s use of the article is transformative. Although the former owner, the LVRJ, used
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`the article for news-reporting, the court focuses on the current copyright owner’s use, which, at this
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`juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the
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`article to educate the public is transformative and does not constitute a substitution of the plaintiff’s
`use. See Perfect 10, 508 F.3d at 1146 (discussing the effect of market substitution in relation to the
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`first and fourth factors).
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`Second, the court finds that the purpose of the use here was non-commercial. The parties
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`agree that defendant CIO is a non-profit corporation with an educational mission; indeed the plaintiff
`has characterized the defendant as such on the face of the complaint. (See doc. #1, ¶ 4) (referring to
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`CIO as “a not-for-profit Oregon entity”). Additionally, the declaration of defendant and CIO
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`executive Kayse Jama (doc. #7-2) evidences CIO’s educational mission and establishes that
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`defendants did not sell, license, or publish the work commercially. In light of this evidence, the court
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`also concludes that defendants’ solicitation of donations on their website is immaterial, and no
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`reasonable jury could conclude that the defendants used the disputed article for a commercial
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`purpose. Accordingly, the first factor weighs in favor of a finding of fair use.
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`(B)
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`Nature of the Copyrighted Work
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`The second factor considers the nature of the copyrighted work. “Works that are creative in
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`nature are ‘closer to the core of intended copyright protection’ than are more fact-based works.”
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 5 of 8
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`Napster, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586). Where the disputed use can be
`characterized as news-reporting, this factor weighs heavily in favor of a finding of fair use. Los
`Angeles News Serv., 108 F.3d at 1121.
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`The court concludes that a reasonable trier of fact could only reach one conclusion as to the
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`nature of the disputed article – it is an informational work, which readily lends itself to a productive
`use by others and, thus, deserves less protection than a creative work of entertainment. Sony Corp.
`Of Am. v. Universal City Studios, Inc., 464 U.S. 417, 496–97 (1984). Discovery and additional fact-
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`finding are unnecessary to reach this conclusion, which the court draws simply from reading the
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`article itself. Accordingly, this factor weighs heavily in favor of a finding of fair use.
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`(C)
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`Amount/Substantiality of the Portion Used in Relation to the Work as a Whole
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`“The third factor considers whether the amount and substantiality of the portion used in
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`relation to the copyrighted work as a whole . . . are reasonable in relation to the purpose of the
`copying.” Campbell, 510 U.S. at 586. Although “wholesale copying does not preclude fair use per
`se, copying an entire work militates against a finding of fair use.” Napster, 239 F.3d at 1016 (internal
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`quotations omitted). Thus, under some circumstances, a court may determine that a use is fair even
`where the protected work is copied in its entirety. Id. (citing Sony, 464 U.S. at 449–50).
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`Here, the court finds that, although the defendants posted the work in its entirety, the amount
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`used was reasonable in light of the purpose of the use, which was to educate the public about
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`immigration issues. Because of the factual nature of the work, and to give the full flavor of the
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`information, the defendants used the entire article rather than trying to distill it. The court finds that
`it would have been impracticable for defendants to cut out portions or edit the article down. See e.g,
`Campbell, 510 U.S. at 588–89 (noting that for a parody to be effective, it must take enough material
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`to evoke the original).
`Additionally, the court finds Worldwide Church of God v. Philadelphia Church of God, Inc.,
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`227 F.3d 110, 1118 (9th Cir. 2000), relied on heavily by the plaintiff, distinguishable. That case
`does not stand for the broad proposition that use of an entire work precludes a fair-use finding. Id.
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`at 1118 (recognizing that wholesale copying does not necessarily preclude a finding of fair use). In
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 6 of 8
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`Worldwide Church, a church owned the copyright in a 380-page book written by its founder. 227
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`F.3d at 1112. The church discontinued distribution of the book, following a change in church
`doctrine. Id. at 1113. However, a splinter group within the church countermanded the directive by
`printing and distributing 30,000 copies of the book and ignoring a cease-and-desist letter. Id.
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`Ultimately, distribution of the book drew thousands to the new congregation, and those members
`tithed ten-percent of the church’s income. Id. at 1118.
`The instant action and Worldwide Church are distinguishable. First, the alleged infringers
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`here are using the work for informational purposes, rather than to garner membership in an
`organization competing directly with the plaintiff. Second, the infringement in Worldwide Church
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`was of an entire published book, rather than one news article in an online newspaper. Third, the
`infringers in Worldwide Church deleted the plaintiff’s copyright information from their version of
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`the book, whereas the defendants here attributed the article to the LVRJ. Accordingly, the court finds
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`that this factor favors neither party.
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`(D)
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`Effect of the Use Upon the Potential Market
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`The fourth factor is the effect of the allegedly infringing use upon the potential market for
`or value of the original, copyrighted work. Campbell, 510 U.S. at 590 (citing 17 U.S.C. § 107(4)).
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`The rationale behind the inclusion of this factor is that “[f]air use . . . is limited to copying by others
`which does not materially impair the marketability of the work which is copied.” Harper & Row
`Publishers, 471 U.S. at 566–67.
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`The weight given to this factor will depend on the relative strength of the showing on other
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`factors, for example:
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`A challenge to a noncommercial use of a copyrighted work requires proof either that
`the particular use is harmful, or that if it should become widespread, it would
`adversely affect the potential market for the copyrighted work. . . . If the intended use
`is for commercial gain, that likelihood [of market harm] may be presumed. But if it
`is for a noncommercial purpose, the likelihood must be demonstrated.
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`Napster, 239 F.3d at 1016 (quoting Sony, 464 U.S. at 541). Here, as established under the first-factor
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`analysis, the use is non-commercial; thus, no presumption of harm arises. Additionally, because the
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`work is transformative under the first factor, there is no “market substitution . . . and market harm
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 7 of 8
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`may not be so readily inferred.” Perfect 10., 508 F.3d at 1168 (citing 17 U.S.C. §107(4)). Thus, the
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`burden falls on the plaintiff to demonstrate the existence of market harm. The plaintiff has not met
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`its burden.
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`First, the plaintiff has failed to allege that a “market” exists for its copyright at all, and the
`court declines to simply presume the existence of a market. See e.g., Field v. Google Inc., 412 F.
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`Supp. 2d 1106, 1121 (D. Nev. 2006) (declining to presume a market exists where the work was
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`offered for free in its entirety). Second, because Righthaven cannot claim the LVRJ’s market as its
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`own and is not operating as a traditional newspaper, Righthaven has failed to show that there has
`been any harm to the value of the copyright. Cf. eBay v. MercExchange, LLC, 547 U.S. 388 (2006)
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`(holding that courts should not broadly presume harm when issuing preliminary injunctions in the
`patent context); see Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (extending eBay to the copyright
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`context and anchoring the irreparable harm analysis in equitable principles). Accordingly, the fourth
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`fair use factor weighs in favor of a finding of fair use.
`IV.
`Conclusion
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`The court finds that the defendant’s use of the copyrighted article in this case constitutes fair
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`use as a matter of law. The article has been removed from its original context; it is no longer owned
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`by a newspaper; and it has been assigned to a company that uses the copyright exclusively to file
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`infringement lawsuits. Plaintiff’s litigation strategy has a chilling effect on potential fair uses of
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`Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing
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`to advance the Copyright Act’s purpose of promoting artistic creation.
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`Accordingly,
`IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, in the case of Righthaven
`LLC v. Center For Intercultural Organizing et al. (2:10-cv-01322-JCM -LRL), summary judgment
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`is granted in favor of the defendants;
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`. . .
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`James C. Mahan
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`Case 2:10-cv-01322-JCM -LRL Document 38 Filed 04/22/11 Page 8 of 8
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`IT IS FURTHER ORDERED that the defendants shall prepare an appropriate judgment for
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`the court’s review and signature.
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`DATED April 22, 2011.
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`UNITED STATES DISTRICT JUDGE
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`James C. Mahan
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