Against the Grain

Volume 23 | Issue 3 Article 29

June 2011 Legally Speaking -- : Wrong Model Bryan M. Carson J.D., M.I.L.S. Western Kentucky University Libraries, [email protected]

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Recommended Citation Carson, Bryan M. J.D., M.I.L.S. (2011) "Legally Speaking -- Righthaven: Wrong Model," Against the Grain: Vol. 23: Iss. 3, Article 29. DOI: https://doi.org/10.7771/2380-176X.5907

This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES

Section Editors: Bruce Strauch (The Citadel) Bryan M. Carson, J.D., M.I.L.S. (Western Kentucky University) Jack Montgomery (Western Kentucky University) Legally Speaking — Righthaven: Wrong Model by Bryan M. Carson, J.D., M.I.L.S. (Associate Professor, Coordinator of Reference and Instructional Services, Associated Faculty — Library Media Education Program, Western Kentucky University Libraries, 1906 College Heights Blvd. #11067, Bowling Green, Kentucky 42101-1067; Phone: 270-745-5007; Fax: 270-745-2275)

or many years, patent “trolls” have filing suit, many of its targets have reported However, this case didn’t turn out so well bought up patents, then used this power being taken completely by surprise. Indeed, for Righthaven. During the discovery phase, Fto file lawsuits against “infringing” com- many alleged infringers have reported that they the DU requested that Stephens Media pro- panies. Officially known as “non-practicing would have voluntarily removed the newspaper duce their agreement with the Review Journal. entities” or NPEs, trolls “derive all or most articles from their Websites if they had been After examining this document, DU’s lawyers of their revenue from the enforcement of pat- asked to do so.”5 sought to unseal the agreement and release its ents. Patent trolls are clearly distinguishable The Righthaven model has resulted in contents to the public. The Electronic Free- from major research institutions, universities, many small blogs and Websites being charged dom Foundation supported this request, which and businesses that derive their revenue, re- large sums of money — but still less than it Righthaven and Stephens Media opposed. spectively, from funded research, tuition and would cost to defend a lawsuit. 120 cases (al- However, Judge Rodger Hunt (D. Nev) grants, and the sale of products and services. most half of those filed) have been settled with agreed that the document should be unsealed Some of the largest of these NPEs raise large revenue of $420,000. This provides an average and made public, stating: “consider[ing] the funds with which to purchase the patents they yield of around $3,500 per case.6 Recently multitude of cases filed by Righthaven, on seek to enforce — without any plans to turn other entities and newspapers have become the claimed basis that Righthaven owns the those patents into marketable products or involved with the Righthaven saga, including copyrights to certain Stephens Media copy, services. Instead, they then use these funds to WEHCO Media and Media News Group (the it appears to the Court that there is certainly enable — through direct or veiled threats of parent company of the Denver Post). an interest and even a right in all the other infringement — their pursuit of royalties from defendants sued by Plaintiff to have access to The backlash against Righthaven has successful businesses.”1 this material.”12 been swift and broad-based. Many attorneys Now a new variety of troll has arisen in the and journalists have opposed this practice, It turns out that the copyright “assignment” realm of copyright. The newspaper industry including the Sun (the other major is being made solely for the purposes of the has fallen on hard times, so Stephens Media daily newspaper). The Electronic Freedom litigation, which DU and Righthaven argue 13 LLC has come up with a new way to make Foundation has condemned this model,7 and makes it invalid and “a sham.” The agree- money. Stephens Media (the parent company several anti-Righthaven Websites have been ment reads in part as follows: of the Las Vegas Review-Journal) has joined set up.8 Several recent cases have held that the Stephens Media shall retain (and is with attorney Steven Gibson to form a joint postings are a matter of . In April, the hereby granted by Righthaven) an ex- 2 venture named Righthaven. Internet registrar GoDaddy seized the Right- clusive license to Exploit the Stephens As Bruce Strauch pointed out in his ex- haven domain name after discovering incorrect Media Assigned Copyrights for any cellent April column for Against the Grain, information in their registration documents.9 lawful purpose whatsoever and Right- the business model for Righthaven is to sue Several judges have also found issues with haven shall have no right or license to Websites, user forums, and blogs whose users the company’s aggressive enforcement tech- Exploit or participate in the receipt of have posted copies of articles or photographs niques. One significant case wasRighthaven royalties from the Exploitation of the from the Las Vegas Review-Journal. The v. (“DU”). The DU Stephens Media Assigned Copyrights company searches the Internet for material (a major blog associated with the Democratic other than the right to proceeds in as- from the paper. When it finds items posted, Party) was sued over a five-sentence extract sociation with a Recovery.... Stephens Righthaven purchases the rights from the from the paper.10 Righthaven alleged in its Media shall have the right at any time to Review-Journal, registers the copyright, and complaint that it would suffer irreparable harm terminate, in good faith, any Copyright files a lawsuit. Between March 2010 and because of this publication, and that: Assignment (the ‘Assignment Termi- March 2011, the company filed 254 lawsuits nation’) and enjoy a right to complete 3 • Righthaven holds the exclusive right for . reversion to the ownership of any copy- to reproduce the Work, pursuant to 17 right that is the subject of a Copyright Not only does Righthaven ask for money, U.S.C. § 106(1). in most cases it also requests that the courts Assignment....14 • Righthaven holds the exclusive right to transfer the domain names under the provisions This agreement makes Stephens Media the 4 prepare derivative works based upon the of the Digital Millennium Copyright Act. Ac- real party in interest, even though Stephens has Work, pursuant to 17 U.S.C. § 106(2). cording to one blogger, the Righthaven model not been filing the lawsuits. The Electronic works as follows: “Most of the lawsuits filed • Righthaven holds the exclusive right to Freedom Foundation maintains that assign- by Righthaven are based upon the display of distribute copies of the Work, pursuant ment purely for the purpose of litigation is a single Review Journal article on the offend- to 17 U.S.C. § 106(3). invalid.15 The Stephens Media agreement is ing Website. The lawsuits allege ‘willful’ • Righthaven holds the exclusive right to troublesome for another reason. It does not copyright infringement... Since Righthaven publicly display the Work, pursuant to assign all Review-Journal articles. It assigns 11 does not send cease and desist letters before 17 U.S.C. § 106(5). continued on page 57

56 Against the Grain / June 2011 work in a discussion forum was for educational The CIO claimed that the fair use provisions Legally Speaking purposes, namely to stimulate commentary of 17 U.S. Code § 107 allowed this article to from page 56 and criticism, and had no actual or potential be posted. Many people think of fair use as effect on the work’s potential market.... The an exception to copyright law, but in reality it only those articles that Stephens Media finds copyrighted work was an informational piece is an affirmative defense. In other words, the to have been used. The pertinent language intended to stimulate discussion, and Hoehn’s defendant tells the court that “I did violate the reads as follows: use of it furthered this goal.”20 owner’s exclusive rights, but I was entitled to Stephens Media shall assign (at the Since Wayne Hoehn and I both live in do so.” Thus in the CIO case, it made sense for times stated) to Righthaven, pursuant to Bowling Green, I naturally had to interview the defendants to claim fair use. The language the procedures set forth in Section 7: (a) him about the case. I spoke with Mr. Hoehn of § 107 reads as follows: any copyrights owned by Stephens Me- on February 23, 2011. He gave me the factual Notwithstanding the provisions of sec- dia that Stephens Media desires to be background of the case, noting that he did give tions 106 and 106A, the fair use of a the subject of Searching (the “Searching credit to the paper and the author of the article. copyrighted work, including such use Decision”), with each such respective Again, Mr. Hoehn reiterated that the purpose by reproduction in copies or phonore- assignment to occur within a reasonable of the posting was political commentary and cords or by any other means specified time after Stephens Media makes each discussion, a purpose that is supported by the by that section, for purposes such as respective Searching Decision, (b) any fair use principles (and, I would argue, the First criticism, comment, news reporting, copyrights owned by Stephens Media Amendment). teaching (including multiple copies for that Stephens Media considers (the classroom use), scholarship, or research, “Material Risk Conclusion”) a material Mr. Hoehn noted that “It’s really odd in these days when they have share buttons and is not an infringement of copyright. In risk of infringement (with each such determining whether the use made of respective assignment to occur within email.... It’s equivalent to having a recipe and sending it to your mother.” After all, the a work in any particular case is a fair thirty (30) days after Stephens Media use the factors to be considered shall makes each respective Material Risk Review-Journal’s interface actually encourages people to share its articles. include — Conclusion, and (c) within thirty (30) 1) The purpose and character of the Righthaven did not send a “cease or desist” days of having respective Infringement use, including whether such use is of request to either Mr. Hoehn or the Website Notice, each and every Infringed Copy- a commercial nature or is for nonprofit owner. Instead, they immediately filed a case right that exist during the Term (the “As- educational purposes; signed Infringed Copyright(s)”).16 in the U.S. District Court for the District of Nevada. Their attorneys then “offered” to 2) The nature of the copyrighted In a separate case, Judge Hunt also dis- work; missed a Righthaven domain name seizure settle the case. According to Mr. Hoehn, he against Thomas DiBiase, noting that “Con- could have settled for around $2,500 to $3,000. 3) The amount and substantiality of gress has never expressly granted plaintiffs However, he decided to fight the case “as a mat- the portion used in relation to the copy- in copyright infringement cases the right to ter of principle.” Mr. Hoehn stated that: “It’ll righted work as a whole; and seize control over the defendant’s Website cost me more in the short term, but it will save 4) The effect of the use upon the domain.”17 As the Electronic Freedom Foun- some money in the long run for going through potential market for or value of the 21 dation noted: this stuff in the future.” He contacted the copyrighted work. Electronic Freedom Foundation, which put [T]he threat is utterly improper. The The fact that a work is unpublished shall him in touch with anti-Righthaven attorney country’s most popular online destina- not itself bar a finding of fair use if such Marc J. Randazza. tions, like , Amazon finding is made upon consideration of all and Yahoo!, have faced copyright On February 2, 2011, Mr. Hoehn’s at- the above factors. infringement allegations based on torneys filed a motion for summary The four factors listed above are the their ordinary operations. But no one judgment on the grounds that the basis of the fair use doctrine. When would imagine that a plaintiff alleging use was transformative and pro- analyzing the use of a work, it copyright infringement against those tected under the fair use doc- is important to always look companies would be entitled to domain- trine.22 After Righthaven at all four of these factors. name transfer as a copyright remedy if opposed this motion,23 The “purpose and character infringement was established. Consider Mr. Hoehn filed another of the use” involves asking the Drudge Report, one of many sites brief, relying heavily on the whether the use is for the that Righthaven sued. Its domain decision of Judge James Mahan purpose of making money. name is estimated to be worth well in Righthaven v. Center for In- The “nature of the copy- into the millions of dollars. Transfer tercultural Organizing (hereinafter righted work” deals with would confer a lottery-sized jackpot “CIO case”), which is discussed the material itself. The use on the plaintiff and cause catastrophic extensively below. Finally, based on is more likely to be fair if the harm to the defendant — a result that the results of the Democratic Under- work is non-fiction or factual. It Congress did not and could not have ground case, Mr. Hoehn’s attorneys filed a is less likely that the use of a fictional, literary, intended when it crafted the copyright motion to dismiss for lack of subject matter or creative work will be fair, although even then damages scheme. Moreover, seizing an jurisdiction.24 comment, criticism, teaching, and scholarship entire Website based on a tiny portion In the CIO case, Judge James Mahan may provide a reason to use portions of a of content, even if that content were granted summary judgment in favor of the de- copyrighted work. infringing, necessarily violates the First fendant on fair use grounds.25 This case arose “The amount and substantiality of the por- 18 Amendment. after the CIO posted an article in its entirety on tion used” does not lay out a specific amount. A recent case demonstrates Righthaven’s their Website. “The disputed article discusses The amount must be “reasonable” (whatever model and the procedure of these lawsuits. whether police in the Las Vegas area were that means!). There are many myths about Wayne Hoehn, an insurance agent in Bowling targeting minorities. Defendants, an Oregon this provision. For example, some people Green, Kentucky, posted an article the Review- nonprofit organization dedicated to helping claim that there is a specific page limit. Others Journal to the Website Madjack Sports.19 The immigrants become aware of immigration- believe that using a single chapter of a book article dealt with unions and sports, and the related issues in the United States, posted is always fair use. These myths are not true. posting included discussion and commentary the article in its entirety on their Website, The amount that is “reasonable” is the amount on the article. In fact, Hoehn’s answer to the purportedly to educate the public about the that is necessary to use for the particular cir- 26 complaint stated that: “Hoehn’s use of the issues contained therein.” continued on page 58

Against the Grain / June 2011 57 used” test. However, courts have ruled that The recent rulings against Righthaven Legally Speaking the amount used can be sufficient to evoke the appear to be part of an accelerating trend. from page 57 purpose. For example, the 2 Live Crew case Courts are increasingly finding that copyright — Campbell v. Acuff-Rose Music, Inc.30 — fa- and trademark owners have misused take- cumstances — and nothing more. This clause mously involved parody that involved using the down notices in order to seek unsubstantiated is the subject of many questions, especially in original work in its entirety. Luther Campbell monetary claims. This has been especially a university setting. When asked about this (a.k.a. luke skyywalker), the leader of the hip- prominent with media and sports companies, by faculty, I always advise people to use as hop group 2 Live Crew, wrote a parody using as pointed out by a recent article in the John little of the copyrighted work as possible, and Roy Orbison’s song “Pretty Woman.” Marshall Law School Review of Intellectual only what is truly needed. (Of course, this is In 2 Live Crew, the Supreme Court found Property Law.35 true from a pedagogy and instructional design that the use was protected under fair use and the Righthaven’s misguided attempt to mon- standpoint as well, something I am also not First Amendment, stating that: “we recognize etize news via copyright enforcement is now loath to point out.) that the extent of permissible copying varies clearly under attack. Judge John Kane, who The final factor in a fair use analysis is with the purpose and character of the use.... is hearing the Righthaven cases in Colorado, “The effect of the use upon the potential Parody’s humor, or in any event its comment, wrote in Righthaven v. Brian D. Hill that the market....” This factor asked whether the necessarily springs from recognizable allusion Righthaven business model “relies in large use would replace or affect sales. Again, us- to its object through distorted imitation. Its art part upon reaching settlement agreements with ing examples I deal with every day, faculty lies in the tension between a known original a minimal investment of time and effort.... members often want to know whether they and its parodic twin. When parody takes aim The purpose of the courts is to provide a forum can reproduce and distribute a chapter from a at a particular original work, the parody must for the orderly, just, and timely resolution of textbook in their classes. When an instructor be able to “conjure up” at least enough of that controversies and disputes. Plaintiff’s wishes assigns a textbook, the publisher gets paid for original to make the object of its critical wit to the contrary, the courts are not merely tools the sale. But if the teacher copies a chapter, recognizable....”31 for encouraging and exacting settlements from the publisher doesn’t get paid. Thus, it is In the CIO case, Judge Mahan ruled that defendants cowed by the potential costs of never fair use to copy and distribute a chapter the defendant’s use of the entire article was litigation and liability.”36 When Righthaven from a current textbook instead of having reasonable, stating: sought to voluntarily dismiss this case, Judge students buy the book. Kane ruled that the dismissal would be with [T]he amount used was reasonable in 37 In its analysis of the CIO case, Judge light of the purpose of the use, which prejudice. Mahan found that the purpose of the use was was to educate the public about immi- The Righthaven model is based on fear transformative. “Although the former owner, gration issues. Because of the factual and intimidation. Yet this is clearly the the LVRJ, used the article for news-reporting, nature of the work, and to give the full wrong model for the beleaguered newspaper the court focuses on the current copyright flavor of the information, the defendants industry. Instead, many newspapers are now owner’s use, which, at this juncture, has used the entire article rather than trying erecting pay walls, forcing would-be readers been shown to be nothing more than litiga- to distill it. The court finds that it would to subscribe online just as they did in print. tion-driven. Accordingly, CIO’s use of the have been impracticable for defendants The New York Times will now allow readers article to educate the public is transformative to cut out portions or edit the article to access up to 20 articles per month before and does not constitute a substitution of the down.32 being asked to pay. A subscription service plaintiff’s use.”27 The court also found that is available for readers who intend to read The final factor in a fair use analysis is 38 the use was non-commercial, stating: CIO is the effect on the potential market. Here, the lots of articles. The Daily O’Collegian at a non-profit corporation with an educational judge put an end to Righthaven’s claims rather Oklahoma State University has erected a mission; indeed the plaintiff has character- pay wall for readers who are not affiliated quickly. The order noted: “First, the plaintiff 39 ized the defendant as such on the face of has failed to allege that a ‘market’ exists for with the institution. While these attempts the complaint.... [D]efendants did not sell, its copyright at all, and the court declines to to lure the genie back into the bottle may yet license, or publish the work commercially... simply presume the existence of a market.... turn out to be futile, at least newspapers are and no reasonable jury could conclude that Second, because Righthaven cannot claim the experimenting with new business models in an the defendants used the disputed article for a attempt to save their core business — without 28 LVRJ’s market as its own and is not operating as 40 commercial purpose.” a traditional newspaper, Righthaven has failed resorting to copyright claims. The nature of the work is an important part to show that there has been any harm to the So many cases have ruled against their of the fair use analysis. News is not subject to value of the copyright” [citations omitted].33 claims that Stephens Media has now been copyright. Facts and ideas are specifically ex- Thus, factors one, two, and four were in forced to hire an expensive litigator. Howev- cluded by 17 U.S. Code § 102, which lays out favor of fair use. Even with factor three Judge er, this expense will eat up much of the quick the subject matter of copyright. Because news Mahan ruled that it was reasonable for CIO profits thatRighthaven has made. Along with consists of facts, the news itself cannot be to use the whole work, and the court granted the ensuing judicial backlash, Righthaven’s copyrighted. However, the author’s expres- summary judgment to CIO on the merits of the model is turning out to be problematic. Ac- sion of this news can itself be copyrighted. case. The court ruled: cording to Eric Goldman, director of the This is the basis for the Review-Journal’s High Tech Law Institute at Santa Clara [T]he defendant’s use of the copyrighted copyright rights. University School of Law, Righthaven’s article in this case constitutes fair use as business model is the wrong way: Nonetheless, courts have traditionally a matter of law. The article has been re- found less protection for factual and news moved from its original context; it is no Their model assumes lots of quick items than for fictional or creative works. In longer owned by a newspaper; and it has settlements, and their profit/loss projec- the CIO case, the court noted: “a reasonable been assigned to a company that uses the tions may not have anticipated just how trier of fact could only reach one conclusion copyright exclusively to file infringe- many — and how hard — defendants as to the nature of the disputed article — it is ment lawsuits. Plaintiff’s litigation would fight back in court. I wouldn’t be an informational work, which readily lends strategy has a chilling effect on potential a bit surprised if Ms. Cendali’s fees in itself to a productive use by others and, thus, fair uses of Righthaven-owned articles, this case end up being many multiples deserves less protection than a creative work diminishes public access to the facts of the maximum damages that Right- of entertainment.”29 contained therein, and does nothing to haven could possibly hope to get from Pahrump Life. That’s hardly a path to The CIO used the entire article, which advance the Copyright Act’s purpose of riches for Righthaven.41 normally cuts against fair use in the “amount promoting artistic creation.34 endnotes on page 59

58 Against the Grain / June 2011 Legally Speaking Endnotes haven’s Copyright Assignment Is A Sham – And dialaw.org/files/2011-04-17-Hoehn%27s%20Mot 1. McCurdy, Daniel P. (2008/2009, Fall/Winter). Why It Matters. Electronic Freedom Foundation. ion%20to%20Dismiss.pdf Patent trolls erode the foundation of the U.S. http://www.eff.org/deeplinks/2011/04/why-right- 25. Righthaven v. Kayse Jama and Center for In- patent system. Science Progress: 78-86 at 79). haven-s-copyright-assignment-sham-and-why tercultural Organizing, No. 2:10-CV-1322 JCM http://www.scienceprogress.org/wpcontent/up- 12. Righthaven v. Democratic Underground and (LRL) (order on motion for summary judgment) loads/2009/01/issue2/mccurdy.pdf David Allen, No. 2:10-cv-1356-RLH-GWF (order (D. Nev., April 22, 2011), at http://www.scribd. 2. Righthaven Lawsuits Website. http://www. on request to unseal and motion to strike) (D. Nev. com/doc/53656315/RH-v-CIO-SJ-Order righthavenlawsuits.com April 14, 2011), at http://www.eff.org/files/file- 26. CIO case at 2. 3. Righthaven Lawsuits Website. See also, node/righthaven_v_dem/2-10-cv-01356_93.pdf. 27. CIO case at 4. Green, Steve. (2011, March 18). Righthaven 13. Opsahl. 28. CIO case at 4. loses second fair use ruling over copyright law- 14. Strategic Alliance Agreement between Right- 29. CIO case at 5. suits. Las Vegas Sun. http://www.lasvegassun. haven LLC and Stephens Media LLC (January com/news/2011/mar/18/righthaven-loses-second- 18, 2010), at http://www.eff.org/files/filenode/ 30. Luther R. Campbell aka luke skyywalker, et fair-use-ruling-over-copyr righthaven_v_dem/79-1.pdf. al. v. Acuff-Rose Music, Inc., 510 U.S. 569; 114 4. 7 U.S.C. § 512(c). S. Ct. 1164; 127 L. Ed. 2d 500 (1994). 15. Opsahl. 5. Fountain, Jonathan. (2010, September 21). 31. 2 Live Crew case at 586-587. Las Vegas Startup Sues Websites: Copyright Trolls 16. Strategic Alliance Agreement. 32. CIO case at 5. and the Rise of the Internet Police. Lewis & Roca 17. Righthaven v. Thomas DiBiase, No. 2:10-cv- 33. CIO case at 7. Intellectual Property Blog. http://www.lrlaw.com/ 01343-RLH-PAL (order on motion to dismiss) (D. ipblog/blog.aspx?entry=169#page=1 Nev. April 15, 2011), at https://eff.org/files/file- 34. CIO case at 7. 6. Righthaven Lawsuits Website. See also, node/righthaven_v_dib/DiBiaseOrder.pdf. 35. Tadlock, Cory. (2008, Spring). Copyright misuses, fair use, and abuse: How sports and Neuburger, Jeff. (2011, February 24). The 18. McSherry, Corynne. (2011, April 18th). media companies are overreaching their copyright Righthaven Lawsuits: What is Fair Use of Online More Bad News for Righthaven: Domain Name Protections. John Marshall Law School Review of Publications? Proskauer Rose LLP. http://new- Claim Dismissed in DiBiase Case. https://www. Intellectual Property Law, 7, 621-646. medialaw.proskauer.com/2011/02/articles/copy- eff.org/deeplinks/2011/04/more-bad-news-right- right/the-righthaven-lawsuits-what-is-fair-use- haven-domain-name-claim 36. Righthaven v. Brian D. Hill, No. 1:11-cv- of-online-publications/#page=1 00211-JLK (order denying Righthaven’s opposed 19. Madjack Sports, at http://www.madjacks- motion for enlargement of time to file a response 7. Electronic Frontier Foundation. (2010, ports.com/forum September 28). A Field Guide to Copyright Trolls. to defendant’s motion to dismiss) (D. CO., April 7, https://www.eff.org/deeplinks/2010/09/field- 20. Righthaven v. Wayne Hoehn, No. 2:11-cv- 2011), at http://www.scribd.com/doc/52561398 guide-copyright-trolls 00050 (Defendant’s answer to complaint) (D. 37. Righthaven v. Brian D. Hill, No. 1:11-cv- Nev., February 4, 2011), at http://www.citmedi- 8. The Righthaven Lawsuits Website notes the 00211-JLK (order striking in part Righthaven’s alaw.org/sites/citmedialaw.org/files/2011-02-04- notice of voluntary dismissal with prejudice) following sites in its link section: Righthaven Hoehn%27s%20Answer.pdf Victims Blog, http://righthavenvictims.blogspot. (D. CO., April 11, 2011), at http://www.scribd. com, Righthaven Victims Feed, http:// 21. Telephone Interview with Wayne Hoehn, com/doc/53200329 twitter.com/rhvictims; Stop the LVRJRighthaven Bowling Green, Kentucky (February 23, 2011). 38. Mirkinson, Jack. (2011, March 17). New Witch Hunt Page, http://www.facebook. 22. Righthaven v. Wayne Hoehn, No. 2:11-cv- York Times paywall Launches. The Huffington com/pages/stop-the-LVRJRIGHTHAVEN-witch- 00050 (Defendant’s motion for summary judg- Post. http://www.huffingtonpost.com/2011/03/17/ hunt/131089883577553; Righthaven Lawsuits, ment) (D. Nev., February 2, 2011). new-york-times-launches-p_n_837053.html http://www.scribd.com/righthavenlawsuits; The 23. Righthaven v. Wayne Hoehn, No. 2:11-cv- 39. Abell, John C. (2011, January 5). College BottomFeeder Chronciles, http://www.bottom- 00050 (Defendant’s reply to Plaintiff’s opposition newspaper to erect paywall: It’s academic. Wired. feeder.org. to Defendant’s motion for summary judgment) (D. http://www.wired.com/epicenter/2011/01/college- 9. Rucker, J. D. (2011, April 24). Serves them Nev., March 24, 2011), at http://www.citmedialaw. newspaper-paywall/ right: Righthaven (aka MegaCopyrightTroll) org/sites/citmedialaw.org/files/2011-03-24-Hoeh 40. Knight, Kristina (2011, April 22). Are pay- loses own domain. http://www.techi.com/2011/04/ n’s%20Reply%20to%20Righthaven%27s%20R walls the answer to online publishing? BizReport. serves-them-right-righthaven-aka-megacopy- esponse%20to%20Motion%20for%20Summary http://www.bizreport.com/2011/04/are-paywalls- righttroll-loses-own-domain %20Judgment.pdf the-answer-to-online-publishing.html 10. Electronic Freedom Foundation. Righthaven 24. Righthaven v. Wayne Hoehn, No. 2:11-cv- 41. Green, Steve. (2011, May 4). Righthaven en- v. Democratic Underground. https://www.eff.org/ 00050 (Defendant’s motion to dismiss for lack gages ‘superstar’ attorney in litigation campaign. Vegas cases/righthaven-v-democratic-underground of subject matter jurisdiction) (D. Nev., April 17, Inc. http://www.vegasinc.com/news/2011/may/04/ 11. Opsahl, Kurt. (2011, April 18th). Why Right- 2011), at http://www.citmedialaw.org/sites/citme- righthaven-engages-superstar-attorney-litigation-c/

Questions & Answers — Copyright Column Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193) www.unc.edu/~unclng/gasaway.htm

QUESTION: How does an educational ted for online portion of classes. There are a by a nonprofit educational institution, and institution get permission to use film snippets number of requirements that have to be met students are actually enrolled in the executive on a class Blackboard site? Is there a differ- additionally, such as making the performance education course, then the answer is the same. ence if the institution wants to use the same available only to students enrolled in the If, however, anyone may attend the session snippets for executive education rather than course, having the performance available only without enrollment, then permission to use in a regular university course? during the class session, etc. If the instructor even snippets likely would be required. ANSWER: Assuming that the institution wanted to use more than a reasonable and QUESTION: A librarian is in charge is a nonprofit educational institution, the good limited portion of a film, however, permission of her college’s archives, and the library is news is that using snippets of films in class would be required. planning a digitization project that will in- management software for a class does not The question about executive education is clude college yearbooks published between require permission. Under the TEACH Act, less clear since “executive education” could 1923 and1977. Some of the yearbooks were section 110(2) of the Copyright Act, transmit- mean a number of types of instruction. As- published without notice of copyright. Oth- ted performances of “reasonable and limited suming that it is for continuing education or ers contain a copyright notice with an owner portions” of an audiovisual work are permit- some professional certificate, that it is offered continued on page 60 Against the Grain / June 2011 59