The first dismissal of a copyright infringement action filed by Righthaven took place as we went to press with "Blog Hyperlinks to News Stories = Copyright Infringement or Not?" And, as we predicted, the litigation approach used by Righthaven of suing without sending a cease and desist letter in advance, and filing numerous actions in a short period of time, has resulted in some arguably proactive equitable relief by the court.

In Righthaven LLC v. Realty One Group, Inc., the court exercised its discretion and granted a motion to dismiss based on the Fair Use doctrine. In most cases, courts will not dismiss at the pleading stage based on the Fair Use doctrine, because the four factors of this defense usually require some development of the facts through discovery. But, with over 165 cases filed by Righthaven in less than a year, the federal courts in Nevada seem ready to dispose of these actions at the pleading stage when appropriate.

In Realty One Group, defendant Michael Nelson was a realtor with an Internet blog that provides information concerning home ownership in Las Vegas, Nevada. On his blog, he displayed without permission the first eight sentences of a thirty sentence news article– "Program may level housing sale odds" ("Article"). The Article had been published by the Las Vegas Review Journal who transferred its rights for the Article to Righthaven. Righthaven filed for and received copyright registration for the Article. This transfer and registration occurred about one month after Nelson displayed the Article.

Unlike the majority of Internet blogs that are sued by Righthaven, Nelson decided to fight the action rather than settle early. Nelson filed a motion to dismiss on the grounds that his use was protected by the Fair Use doctrine. In its decision, the court recognized the high burden for motions to dismiss. The court also applied the four factors listed in the Copyright Act, Section 107.