“Righthaven was a concerted, intelligent approach,” Gibson said, in an interview earlier this week. “Before Righthaven came along, not many folks were successful in dealing with copyright infringement.”

In the oral arguments before a Ninth District panel on Tuesday, the future did not look bright for this approach, however intelligent. One judge called it “an attempt that’s too cute by half” to get around legal precedent that prevents copyright holders from transferring away the right to sue while keeping all the benefits associated with copyright.

Fair use

In the process of suing all these website owners, Righthaven also dredged up questions about fair use. That’s what the second appeal before the Ninth Circuit court focused on, and what attracted Google (which filed an amicus brief in a third appeal that sputtered out) and the RIAA (which filed an amicus brief in this one) to Righthaven’s mess.

In both Righthaven v. Hoehn, the case appealed Tuesday, and the case for which Google filed a brief, defendants had posted an entire Review-Journal article. The lower judges that heard the cases had decided the reposts were protected under fair use. Righthaven, in its appeals, was fighting that interpretation.

Google was worried that Righthaven’s argument—that reposting a copyright work in full is always illegal—would limit fair use: Google’s had to argue, in the past, that its image search business and Google Books scans do not impinge upon copyrights. The RIAA, on the other hand, was not comfortable with the ruling in Hoehn that posting a whole article—in this case, on a discussion forum—constituted fair use.

The RIAA may end up relieved; on Tuesday, the appeals court appeared less sympathetic than its lower counterpart to the argument that Wayne Hoehn’s posting was protected under copyright law.

“How’s that fair use?” one judge asked. “Did you ever see a newspaper website without a comments section?” To spark discussion, the judges suggested, Hoehn could have commented on the original story or posted an excerpt or a link.

Righthaven’s basically out of business as of now and currently owes the people it sued tens of thousands of dollars in attorney’s fees. But these fair use issues are still live, and there are other lawyers out there ready to go after websites that have posted copyrighted works—particularly images.

“There are a number of attorneys out there who are engaged in trolling as a strategy,” says Kurt Opsahl at the Electronic Frontier Foundation, who argued against Righthaven in one of the appeals. “Most of the ones that I’m familiar with are doing a much more traditional approach. The copyright holders hire them as counsel to represent them in a lawsuit. That doesn’t bring up the issues that were fatal to Righthaven.”

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.