Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

While it would be far more satisfying to see this motion defeated on substantive grounds, it fails cleanly as a matter of procedure. Rule 27-3(a) requires the movant’s counsel to make "every practicable effort" to notify opposing counsel before filing an Emergency Motion. Righthaven’s counsel failed to do so, and misled this Court about his efforts to do so. Hoehn’s counsel first learned of the Motion by receiving it through the Court’s cm/ecf system .... Only after receiving the Motion did Hoehn's counsel receive a fax from Righthaven's counsel notifying them of its intent to file this Motion

If any court ever were to find that Righthaven owned the copyrights it claimed to own, an unlikely proposition in itself, then the full copyright rights would be subject to seizure in satisfaction of a judgment by a judgment creditor. More likely than not, the “rights” obtained by Righthaven are worth less than paper upon which the agreements transferring them are printed. Nonetheless, worth a million dollars or nothing at all, such a right is intangible property and, as such, may be seized to satisfy the Firm’s judgment, with its value to be determined at auction. To ensure such property is present to even be seized, though, injunctive relief is necessary. Furthermore, the relief sought is not extreme – all that is sought is an order that Righthaven may not disgorge its assets.

A stay of 30 days will enable Righthaven to liquidate money, intangible property rights in its domain name and trademarks, and its claimed copyright rights – again, to the extent Righthaven owns them at all. Depending on which version of the Strategic Alliance Agreement between Righthaven and Stephens Media LLC one looks at, Stephens Media LLC has either the immediate right to reversion, or the right to reversion with 30 day’s notice and a nominal payment. See Hoehn, Case No. 2:11-cv-00050 (Doc. # 28). Even if Righthaven does truly own the copyrights it obtained from Stephens Media LLC – an unlikely proposition based on recent precedent – it may still use the 30 day stay to resell the copyright – potentially even to Stephens Media LLC itself.

In light of these circumstances, and Righthaven’s refusal to put anything regarding its alleged plans to satisfy the Firm’s judgment in writing..., the Firm has neither basis, nor reason, to trust Righthaven, and this court should join its honorable brethren in its strong skepticism of this champertous scheme.... To boot, Righthaven’s only known source of income, copyright infringement litigation, has screeched to a halt in the face of judicial scrutiny; in fact, no new lawsuits have been filed at all since May 2011.... Therefore, it stands to reason that Righthaven has no new revenue on its horizon – especially since its dozens of cases in the District of Colorado have been stayed

Furthermore, if Righthaven’s CEO can provide a statement, under penalty of perjury, that it cannot scrounge up $381.50 in less than 24 hours, then the undersigned will gladly find someone willing to loan this amount to Righthaven for that purpose, and pledges to do so within 60 minutes of being presented with this sworn declaration.

• First off, Eriq Gardner is unlikely to be a pushover on this topic. While he writes for a few different publications, I believe his main job is writing the Hollywood Reporter's legal blog, THR, Esq., where he covers a ton of copyright stories. This is someone who knows copyright law backwards and forwards.
• Second, it's odd that Righthaven is targeting Gardner directly, rather than Ars Technica (owned by Conde Nast). Steve Green (who is the guy to follow on Righthaven stories) over at the Las Vegas Sun suggests the lawsuit targeted Gardner rather than Ars Technica because Ars Technica has a registered DMCA agent. I'm not sure that actually applies here, though. Gardner's article wasn't a user submission/forum post, but a full article that I assume was officially commissioned by Ars. I don't see how going after Gardner directly makes any sense.
• The key issue: this is about as cut & dried a case of fair use as there ever was. Gardner was writing about Righthaven, and in the article, to demonstrate what Righthaven was suing about, he showed the image (from Righthaven's own legal filing) that showed Drudge using the image in question. Its use is for news reporting and it's commenting on the image's use in the lawsuit. If this isn't fair use, then fair use doesn't exist.