Judge Asks Righthaven To Explain Why Reposting Isn't Fair Use... Even When Defendant Didn't Claim Fair Use

from the not-good-for-Righthaven dept

In yet another sign that things may not be looking so good for copyright lawsuit machine Righthaven, a judge has asked Righthaven to explain why a non-profit organization reposting an article isn't fair use. There are two reasons why this is interesting. First, to date, most of the "fair use" claims in Righthaven cases have involved sites posting snippets of articles, rather than the full articles (Righthaven has recently said it will only sue for full articles going forward). However, this is a full article, and the judge is still considering whether or not it's fair use. As we've noted in the past, there are certainly cases where using the entirety of a work still constitutes fair use, and this may be one of them.

The other reason why this is interesting is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up. At the very least, this suggests that the various Nevada judges being inundated with hundreds of Righthaven cases are at least aware of the other cases, what defenses are being offered, and what the other judges are saying -- since one Righthaven case has already been found to be fair use.

Of course, if the court finds that there are situations in which posting the entire article can be seen as fair use, it may be game over for Righthaven (and some others as well). Considering how many of the sites sued were small, non-profit sites where the use was clearly not intended to compete or to take money away from Righthaven, if those conditions satisfy a fair use ruling, Righthaven may watch a bunch of these cases fall like dominoes. Of course, that would be quite fitting, in that in bringing nearly 200 lawsuits against various sites, the end result could be that various sites receive clearer guidelines stating that they actually can copy entire articles onto their websites, given certain other conditions.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Hulser (profile), Nov 23rd, 2010 @ 9:24am

    Bad example

    I admit that I don't know all of the legal issues, but on the face of it, it seems morally wrong to copy an entire article and repost it on your own site, no matter if you're a for- or not-for-profit organization. The example given in the "using the entirety of a work" link -- basically thumbnail images of Grateful Dead posters used in a book -- I believe is materially different than copying an article verbatim. Even if copying an entire article is legal, it would be a bad example to a layperson on how big media are abusing copyright law.

     

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  2.  
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    Prashanth (profile), Nov 23rd, 2010 @ 9:31am

    Re: Bad example

    Yes, but as Mike has said before, social mores alone are good enough to prevent someone from copying full articles like this; there's really no need for copyright law to step in here in full force.

     

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  3.  
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    Derek Bredensteiner (profile), Nov 23rd, 2010 @ 9:37am

    Re: Bad example

    What if it was a situation more like this where most (or all) of the article is posted, but it's broken up and commented on and dissected. What if it was exactly like that with comments/dissection and everything, but the dissection comments and the article were separated such that the whole article was posted in it's entirety. What if there was a 5 paragraph complete article posted, followed by 10 paragraphs of dissection? or followed by just 1 paragraph of dissection.

    Are any (none, all) of those cases moral? Are any of those cases fair use? Are they all?

     

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  4.  
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    Shawn (profile), Nov 23rd, 2010 @ 9:41am

    Re: Bad example

    If I were to write a 1500 word article about you, (with or without your permission) What is the word count that would be 'Morally OK' for you to repost on your own site? What if it is an article not about you but about a cause that you strongly support. If a newspaper posted 4 paragraph blurb about an evil dognapper that was busted in your town, would it be morally wrong in your view to post all 4 paragraphs and a link to the newspaper on your favorite dogbreed forum?

    I do not think morals are the best measure.

     

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  5.  
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    Joe Escalante, Nov 23rd, 2010 @ 9:47am

    Fair Use of complete works

    For an interesting example of an attempt to use entire works to make a point under the Fair Use Doctrine, see how the director of the compelling documentary "The Agony and Ecstasy of Phil Spector" used his music to tell a story.

    He used entire works, made a justification for it, and commented on the works in the lower 3rd of the screen while the documentary rolled on.

     

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  6.  
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    Hulser (profile), Nov 23rd, 2010 @ 9:52am

    Re: Re: Bad example

    social mores alone are good enough to prevent someone from copying full articles like this; there's really no need for copyright law to step in here in full force.

    Agreed, however...if somehow I had a choice as to what story would get widespread attention, it would be one where a newspaper threatened to sue some blogger for using 17 words in a valid critique of an article and not one where a site copied the entire article from a newspaper and got away with it because of a fair use defense.

     

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  7.  
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    Anonymous Coward, Nov 23rd, 2010 @ 9:59am

    Just because the judge asked Righthaven to show cause why this isn't fair use very likely will lead to Righthaven showing just that and the judge agreeing that it's not fair use. You guys get so excited by the little things.

    Righthaven may watch a bunch of these cases fall like dominoes.

    Don't hold your breath waiting.

     

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  8.  
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    Hephaestus (profile), Nov 23rd, 2010 @ 10:02am

    Re: Re: Bad example

    "there's really no need for copyright law to step in here in full force."

    Why not? If we get a decision that says not for profits are allowed to copy full articles then its a good thing. Which of course will get appealed and funded by the content industry. Because we cant have anything but more protection on content.

     

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  9.  
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    Jeremy7600 (profile), Nov 23rd, 2010 @ 10:34am

    Re:

    Don't hold yours bucko, Righthaven is going to become Wronghaven.

     

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  10.  
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    interval (profile), Nov 23rd, 2010 @ 10:38am

    Yay

    Give that judge a gold star.

     

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  11.  
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    Rob Bodine (profile), Nov 23rd, 2010 @ 10:53am

    Website Hits

    Bad judge! :-)

    Fair use exists as a vague means to avoid absurd results when enforcing copyright law. It prevents us from losing the forest for the trees. If a full article is posted verbatim, then there's no reason to visit the original site, resulting in a loss of hits to the site. This damages the original site's prestige and/or ad revenue, potentially taking a good content producer out of the market and robbing the public of the producer's quality content. Clearly, this is a perfect example of what copyright law is designed to prevent. Regardless of your feelings towards Righthaven, you would be losing the forest for the trees if you supported the not-for-profit on this issue. (As for the rest of the case, I have no opinion because I haven't followed it.)

     

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  12.  
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    Hulser (profile), Nov 23rd, 2010 @ 11:24am

    Re: Re: Bad example

    Are any (none, all) of those cases moral? Are any of those cases fair use? Are they all?

    Your example is a perfect one to demonstrate why you can't have completely objective rules in the determination of what is fair use. In your example, I think the intent it obvious, critique. So, I personally don't see a problem with it. I don't know if this is the right legal word, but the added comments and disection make it transformative. It's not wholey a new work, but it's a new work none the less.

     

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  13.  
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    jjmsan (profile), Nov 23rd, 2010 @ 11:28am

    Re: Website Hits

    Wrong, Fair use exists because copyright is a monopoly granted by the government representing the citizens to promote a specific outcome. Fair use is the public's compensation for that monopoly.
    Second, If I see an interesting full article check out the site because they may have more articles I like.

     

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  14.  
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    Hulser (profile), Nov 23rd, 2010 @ 11:35am

    Re: Re: Bad example

    If I were to write a 1500 word article about you, (with or without your permission) What is the word count that would be 'Morally OK' for you to repost on your own site?

    In general, somewhere in the range of less than 1500 words.

    What if it is an article not about you but about a cause that you strongly support. If a newspaper posted 4 paragraph blurb about an evil dognapper that was busted in your town, would it be morally wrong in your view to post all 4 paragraphs and a link to the newspaper on your favorite dogbreed forum?

    It's all quite subjective of course, but in general, I'd say that the smaller the original content, the greater leeway there should be with fair use. Sure, you can have a brilliant thought condensed down into a single sentence, but from a practical standpoint it's hard to quote a snippet of a quote. ("Brevity is...wit"?)

    Where I think it becomes much less subjective is when you copy the entire work of someone else's where that work is non-trivial. What is non-trivial? More than four paragraphs? Well, I know it when I see it. Again, that's why there aren't subjective rules on what is fair use.

    I do not think morals are the best measure.

    I was just giving my opinion on what I thought was morally right.

     

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  15.  
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    The eejit (profile), Nov 23rd, 2010 @ 12:11pm

    Re: Website Hits

    Why? IF it's releevant to the non-profit (i.e. z cancer research article on Macmillan's website), then I don't see why they can't just repost it and provide a direct link to the original article, or even just hotlink to the original article.

     

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  16.  
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    Mike Masnick (profile), Nov 23rd, 2010 @ 12:12pm

    Re: Website Hits

    Fair use exists as a vague means to avoid absurd results when enforcing copyright law.

    Fair use is a valve supposedly to protect against copyright law violating the First Amendment.

    If a full article is posted verbatim, then there's no reason to visit the original site, resulting in a loss of hits to the site

    This is factually and legally incorrect. There is no "loss" as it assumes two things, neither of which may be true: (1) that absent the copying, the person would have seen the article on the original site (2) that even after reading the article, the person will not go to the original. Neither of those assumptions has been shown -- and, in many cases, neither is likely.

    This damages the original site's prestige and/or ad revenue, potentially taking a good content producer out of the market and robbing the public of the producer's quality content.

    Again, neither point is factual. Our stuff gets reposted on lots of sites, and in our experience, this greatly ENHANCES our prestige, and increases the likelihood that people will seek out our original content.

    You seem to have only thought through the first pass level, rather than the actual results of what happens.

    Clearly, this is a perfect example of what copyright law is designed to prevent.

    Not clear at all, actually. I would argue, in fact, the opposite is true. This site reposting the content seems like a classic case of fair use.

    Regardless of your feelings towards Righthaven, you would be losing the forest for the trees if you supported the not-for-profit on this issue.

    I disagree 100%. This is not a case where the site is taking away from the LVRJ. It's targeting an entirely different audience, and does so in a way that adds appeal to the LVRJ's brand. Your claim of losses and damages are simply not supported by the facts.

     

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  17.  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 2:37pm

    Re: Website Hits

    There is just one problem with what you said, you don't know that or at least can't prove it.

    According to my own observations people get an article and if there is a link at the bottom saying "from blablabla" people go there, doubt?

    Digg, reddit, slashdot and others are all based on that.

     

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  18.  
    identicon
    Anonymous Coward, Nov 23rd, 2010 @ 2:38pm

    BTW people did you guys already blocked the sites protected by Righthaven?

    Do it now, is not that hard.

     

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  19.  
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    Any Mouse, Nov 23rd, 2010 @ 6:52pm

    Re: Re: Re: Bad example

    What about the one where a site copied the entire article and didn't raise the fair use defense, but still won because of the JUDGE raising the fair use flag? Which is what this one is about.

     

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  20.  
    identicon
    Anonymous Coward, Nov 24th, 2010 @ 2:59am

    Re: Re: Website Hits

    This is factually and legally incorrect. There is no "loss" as it assumes two things, neither of which may be true: (1) that absent the copying, the person would have seen the article on the original site (2) that even after reading the article, the person will not go to the original. Neither of those assumptions has been shown -- and, in many cases, neither is likely.
    And to put that into context, lets take it out of the digital arena as that always seems to get people's "it must be bad" mojo working.....

    How about if the article were in a physical newspaper or magazine and you cut out the article for a friend on a subject they are interested in?

    Let's say someone hands me an article on a cool new computer game engine from the Sunday Times magazine. The questions that occur are:
    Have the Sunday Times lost anything?
    Is it reasonable to assume that I (who don't buy newspapers) would have bought the newspaper if only the person hadn't handed me the article?
    Would it have made any difference if they had only handed me part of the article other than it being mostly pointless for me?
    On the other hand if the article is sufficiently interesting and it says it's part of a series, perhaps it might encourage me to buy - for the duration of the series at least - is that not better then for the ST?

     

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  21.  
    identicon
    Mark, Nov 24th, 2010 @ 11:45am

    Re: Website Hits

    You might have a good point, if any of the ad revenue were going to Righthaven. Since it isn't, its going to the LVRJ newspaper site, Righthaven holds no economic interest in this case EXCEPT suing alleged infringers.
    They buy articles from newspapers, then license the content BACK to the newspaper. The article appears on the newspaper site, the ads are bought from the newspaper. How does having the article posted elsewhere impact Righthaven materially in any way?

     

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  22.  
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    Anonymous Coward, Nov 24th, 2010 @ 12:17pm

    Re: Re: Re: Website Hits

    Great Example!

    I know that a major source of my news reading comes from sites like Digg and Slashdot, and I've been exposed to MANY different websites because of this.

    My first introduction to TechDirt was a reposted article a couple of years back, and I have been a frequent visitor since then.

     

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  23.  
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    DavidRa, Nov 24th, 2010 @ 2:49pm

    Re: Re: Re: Website Hits

    It's not quite that cut and dried. Hmm. Sorry about the pun.

    If you cut the article from the paper, and hand it to someone else, there is no change in the number of copies available to read.

    No matter how many times that copy is handed to someone new, there is still only one of it.

    Copyright is there to attempt to control making _further_ copies of the article. It would only come into play if you copied (photocopy, photograph, stencilled, retyped, etc) - that is to say when that one physical item became more than one.

     

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  24.  
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    Killjoy, Nov 24th, 2010 @ 7:55pm

    Re: Re: Bad example

    social mores alone are good enough to prevent someone from copying full articles like this

    Obviously not. What was this case about again?

     

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  25.  
    identicon
    Anonymous Coward, Nov 25th, 2010 @ 12:36am

    Re: Re: Re: Re: Website Hits

    that is to say when that one physical item became more than one.
    Indeed. OK follow that logic - say I photocopy the article and give copies to some of my friends who also like that kind of stuff and are a bunch of geeks.

    The same questions pertain:
    Has the ST lost anything by my actions?
    Is it reasonable to assume each of the people I gave a copy to would have bought the paper in the absence of me giving them the article?
    Would it have made a difference if I copied only part of the article other than me being laughed at?
    Would you not in general consider it slightly more likely that the ST will get at least a few sales due to my actions? Even if they don't, has not the ST "brand awareness" been increased by my action?

    I'm not trying to suggest that I think any article anywhere can be used however you like, just illustrating that just because an "entire work" is copied doesn't mean it's not "fair use" and doesn't mean it has to be bad for the copyright holder.

     

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  26.  
    identicon
    Jack, Jan 4th, 2011 @ 8:15am

    Re: Website Hits

    No, fair use exists to allow the fair exchange of information for the good of society.

     

    reply to this | link to this | view in thread ]


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