Copyright troll Righthaven achieves spectacular "fair use" loss
By Nate Anderson | Last updated March 22, 2011 3:05 PM
http://arstechnica.com/tech-policy/news/2011/03/copyright-troll-righthaven-achieves-spectacular-fair-use-loss.ars
Whoops—in its bid to sue hundreds of bloggers, commentors, and website
operators from posting even a few sentences from newspaper stories, the
copyright zealots at Righthaven have just scored an own goal. Last Friday, a
federal judge ruled in one of the company's many lawsuits, saying that even the
complete republication of copyrighted newspaper content can be "fair use."
Righthaven has achieved national notoriety for its business model, which
involves scouring the Web—including tiny blogs and nonprofits—for Las Vegas
Review Journal and other newspaper stories. When it finds a match, Righthaven
licenses the copyright from the cooperating newspaper and sues the article
poster without warning for statutory damages of up to $150,000. In addition, it
routinely demands that the poster's domain name be transferred to Righthaven.
The company's most controversial cases have involved posters who only used a
small percentage of the original article, or instances where Righthaven sued
the very sources who had provided the basic information for an article, then
posted the result to their own website. But Righthaven has also gone after many
sites that posted the complete text of a newspaper article, something far less
likely to be seen as fair use.
That was the case with the Oregon-based Center for Intercultural Organizing
(CIO), which Righthaven sued in August 2010 after the group posted a
Review-Journal newspaper article on the deportation of illegal immigrants on
its own website. The case must have seemed like a good fit for Righthaven; it
had found someone taking the entire article! Defense lawyers contented
themselves with arguing that the case should be heard in Nevada, and it didn't
even bother to contest the issue on fair use grounds.
But federal judges have tremendous power over their cases, and on November 15,
2010, federal judge James Mahan on his own initiative issued a terse order.
"The court hereby orders the plaintiff to show cause why this case should not
be dismissed under the 17 U.S.C. § 107 Fair Use exception," he wrote.
At a hearing last week, the judge decided that CIO's use of the full article
text was, in fact, a fair use under the "four-factor test" enshrined in law.
Steve Green, a reporter at the competing Las Vegas Sun newspaper, attended the
hearing. Judge Mahan told both sides that the purpose of copyright law was to
encourage creativity and to disseminate public access to information, so long
as that did not unfairly hinder the market for the original story. In this
case, Mahan said that the tiny Oregon nonprofit had essentially zero overlap
between the readers of its website and the readers of the Review-Journal. In
addition, the effect on the "market" for the work is unclear, since Righthaven
is solely using the copyright to prosecute a lawsuit, not to defend its news
operations (it has none).
The reposted article also fit within CIO's nonprofit educational mission, and
the judge said that it was largely informational in nature, rather than
creative.
The judge also blasted Righthaven for not notifying groups like CIO before
filing a federal lawsuit; most would no doubt remove or limit the offending
material if notified by the copyright holder.
As Green noted in a follow-up piece, the result here is almost comical:
Righthaven goes to war in the name of tough copyright enforcement and winds up
with a ruling that complete republication by some nonprofits falls under the
scope of fair use. "Some 250 Righthaven lawsuits later, Righthaven's startling
achievement is that newspapers now have less—not more—protection from copyright
infringers," Green concluded.
The ruling isn't as "out there" as it might initially sound; courts have long
recognized various complete reuses as "fair." As lawyer Jason Schultz pointed
out in an amicus brief to the court, this was true even of the famous Sony
decision that legalized the VCR in America; complete shows could be copied and
it was "fair."
The Electronic Frontier Foundation rejoiced at the "persuasive precedent" the
case will set, though Righthaven told the judge it would appeal.
This isn't the first time that a judge has found a fair use in a Righthaven
lawsuit, though the previous decision involved only a section of an article
rather than the entire piece.
_______________________________________________
Infowarrior mailing list
[email protected]
https://attrition.org/mailman/listinfo/infowarrior
