Intellectual Property
Apr. 19, 2012
Laurence F. Pulgram
See more on Laurence F. PulgramFenwick & West LLP San Francisco
Last year, Pulgram was looking for a way to stop a Nevada-based company called Righthaven LLC from collecting settlements for copyright infringement from small companies, political campaigns, and anyone who posted Las Vegas Review-Journal stories online.
Some of the websites posted only a few paragraphs of the Review-Journal articles, as his pro bono client, Democratic Underground LLC, had done. So Pulgram had an argument that an excerpt was permitted under the fair use exception to the Copyright Act.
That was an appealing argument, but it would not help all of the defendants, or undermine the structure of having a "hired gun" sue on the newspaper's behalf. Righthaven had sued hundreds of defendants already, collecting small settlements from many of them.
"Ideally, we would find a silver bullet that would kill all of the cases," Pulgram said.
He found it by discovering an agreement between Stephens Media LLC, owner of the Las Vegas Review-Journal, and Righthaven, in which it also had an ownership interest. Pulgram argued that this showed the Review-Journal's copyright assignment to Righthaven was a sham.
"That's ultimately what brought the house tumbling down," Pulgram said.
In a pivotal ruling, U.S. District Judge Roger L. Hunt of the District of Nevada concluded in June that Righthaven did not have standing to sue, because the copyrights to Review-Journal stories were only being assigned to it in order to file lawsuits. Righthaven LLC v. Democratic Underground LLC, 10-1356 (D. Nv., filed Aug. 10, 2010).
The disclosure of the agreement between Stephens Media and Righthaven led to the collapse of the litigation, with courts dismissing the company's remaining cases despite attempts to fix it retroactively.
Pulgram, who worked throughout the case with the San Francisco-based Electronic Frontier Foundation, subsequently won a summary judgment ruling against Stephens Media that Democratic Underground's use of the article excerpt was fair use.
"I think it's a lot less likely that people will undertake this [Righthaven] business model," Pulgram said. "I think that's a big and valuable lesson."
- CRAIG ANDERSON
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com