Ninth Circuit Vacates Fair Use Finding in Righthaven Case

Righthaven LLC v. Hoehn, No. 11-16751 (9th Cir., May 9, 2013)

The U.S. Court of Appeals for the Ninth Circuit sealed the fate of copyright enforcer Righthaven LLC today by ruling that the minimal "right to sue" copyright assignments that Righthaven acquired from newspaper publishers did not confer standing to sue third parties for copyright infringement.

So far, that's good news for bloggers and others who had been targetted by Righthaven. However, the Ninth Circuit's ruling contained a bit of bad news for them: along the way, the court vacated the lower court's ruling that the defendant's posting of the entirety of a copyighted article to an online discussion board was a protected fair use.

The Ninth Circuit found that it was unnecessary to reach this issue in view of its conclusion that Righthaven lacked standing to sue. The Recording Industry Assocation of America and the Association of American Publishers filed amicus briefs in the case urging the Ninth Circuit to vacate the fair use portion of the lower court's ruling.

With this part of the lower court's ruling in Hoehn swept aside, the high-water mark for fair use rights online is arguably another Righthaven case, Righthaven LLC v. Democratic Underground LLC, D. Nev., No. 2:10-cv-01356 (D. Nev., March 9, 2012), where the district court ruled that the posting a five-sentence excerpt of a fifty sentence news article on a political discussion forum was a fair use.