In an earlier post, we examined “copyright trolling,” an unsettling trend in intellectual property enforcement. So far, the primary culprit is the Las Vegas Review-Journal (LVRJ) by way of Righthaven LLC, a copyright litigation specialist possibly created to work exclusively on LVRJ cases, which searches for websites that have reposted articles from the LVRJ without explicit permission to do so. When Righthaven finds a website that has reposted portions of or entire articles, its strategy has been to proceed directly to filing suit instead of engaging in the typical procedure of attempting to resolve the issue first without involving the courts. The more cynical among you may contemplate that Righthaven’s strategy may be designed to extract settlements from unsophisticated bloggers intent on avoiding costly legal battles.

Whatever the thought process behind the sue-first-ask-questions-later strategy, some of the targeted organizations are fighting back. In October, U.S. District Judge Larry Hicks ruled for defendant Realty One Group, Inc. when it dismissed a Righthaven infringement suit finding that the defendant’s posting of the first eight sentences of a 30-sentence LVRJ article to be “fair use” of another’s copyright. While this decision is not necessarily binding precedent on other courts, Judge Hicks reasoning has not gone unnoticed. Then, in early November, in another Righthaven case, the court entered an order for Righthaven to “show cause” why its infringement claim in this case should not also be dismissed on “fair use” grounds. Interestingly, the judge raised this issue without the defendant in the case first doing so. The rulings appear to have had an effect on Righthaven’s strategy. In a motion filed in the Realty One lawsuit on November 15, 2010, Righthaven announced that it “does not anticipate filing any future lawsuits founded upon infringements of less than 75% of a copyrighted work.”

With holdings against it on the fair use issue, it is understandable that Righthaven would want to focus its efforts on businesses that copy its content in full, rather than in excerpts. However, businesses should not rely on these results in assuming they are safe from the kinds of tactics employed by Righthaven, but instead should work with counsel to ensure their compliance with laws affecting their potential liability for published content, such as the Digital Millennium Copyright Act (DMCA).