“these elements are not enough to consider the Work a purely “creative work” in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within “the core of intended copyright protection. “

So if I scan an old book illustration, or take a photo of a a painting, or do a restore in an old painting.
The image is still in the public domain, because “these elements are not enough” ?

This clarification seems to be saying the same thing Patry is saying: that commercial use is not automatically not fair use. It cautions against a “bright-line approach” to fair use, but only insofar as courts consider commerial use to be infringing use.

I did say that “it presumptively tips the scale of that factor to fair use.” Though it’s literally inconsistent with what the Sony court said, I think that’s actually what they meant. The quote you posted seems to confirm this suspicion. But either way, the “first factor” test tips towards fair use.

Let me give you some analysis of the first factor that I think is much better. The district court here is looking at almost the same exact fact pattern as we have here. And notice that the defendant is arguing that the wholesale copying is alright because it’s for commentary. The court doesn’t buy it, and they point to lots of other cases that didn’t buy similar arguments either:

Plaintiffs Los Angeles Times and The Washington Post publish newspapers in print and online versions. Defendant Free Republic is a ?bullenn board? website whose members use the site to post news articles to which they add remarks or commentary. Other visitors to the site then read the articles and add their comments. For the most part, Free Republic members post the entire text of news articles; among these are verbatim copies of news articles from the Los Angeles Times and Washington Post websites.

***

1. The Purpose And Character Of The Use

The first factor listed in ? 107 is ?the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit aducational purposes.? 17 U.S.C. ? 107. This factor assesses whether ?the new work ?merely supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ?transformative.?? Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1995) (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 (D. Mass. 1841)). ?…[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.? Campbell, supra, 510 U.S. at 579.

Inquiry into the character and purpose of a challenged use should be guided by the examples provided in the statute – i.e., whether the use was for purposes of ?criticism, comment, news reporting, teaching …, scholarship or research.? 17 U.S.C. ? 107; Campbell, supra. This list, however, is not intended to be exhaustive or to single out any particular use as presumptively fair. Harper & Row, supra, 471 U.S. at 561. Indeed, the fact that a use falls within one of these categories ?is simply one factor in [the] fair use analysis.? Id. Similarly, while the statute draws a distinction between non-profit and commercial use, not every commercial use of a copyrighted work is presumptively unfair. Campbell, supra, 510 U.S. at 579.

a. Extent To Which Free Republic’s Work Is Transformative

There is no dispute that at least some of the articles posted on the Free Republic website are exact copies of plaintiffs’ articles. While defendants assert there is ?no evidence? before the court that the thousands of Times and Post news articles that have been posted are verbatim copies, they have presented no evidence that they are not.30 Defendants bear the burden of proof on the issue of fair use. To the extent they wish to rely on the fact that something other than exact copies of news articles are posted, therefore, they must come forward with evidence demonstrating that this is so. Since they have not, the court will assume for purposes of assessing the first fair use factor that verbatim copies of complete articles or portions of articles are used.31

There is nothing transformative about copying the entirety or portions of a work verbatim. See Nihon Keizai Shimbun, 166 F.3d at 72 (where the infringing news abstracts were ?for the most part direct translations of Nikkei articles,? the court found that the first factor ?weigh[ed] strongly against fair use?); Los Angeles News Service v Reuters Television Int’l, 149 F.3d 987, 993 (9th Cir. 1998) (unauthorized copying of news footage ?was not very transformative? because the defendant did ?not explain the footage, edit the content of the footage, or include editorial comment?); Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (finding that ?[t]here is no transformation? where the defendant retransmitted original broadcasts over the telephone); Religious Technology Center v. Netcom On-Line Communication Services, Inc., 923 F.Supp. 1231, 1243 (N.D.Cal. 1995) (?Netcom On-Line II ?) (defendant’s posting of some of plaintiffs’ copyrighted material on the Internet was ?only minimally transformative since, unlike the typical critic, [defendant] adds little new expression to the Church’s works?).

Defendants argue that the posting of plaintiffs’ articles on the Free Republic website is transformative because registered visitors add comments and criticism following each article. They distinguish Nihon Keizai Shimbun on this basis, concluding that the additions make the posting significantly more transformative than a translated abstract. Adding commentary to a verbatim copy of a copyrighted work or portions thereof does not transform the work, especially where the first posting of the article by a Free Republic user often contains little or no commentary. See Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1375-76 (9th Cir. 1993) (the fact that defendant ?detailed … the plots [of episodes of a television series]… far beyond merely identifying their basic outline for the transformative purposes of comment or criticism? weighed against a finding of fair use because ?abridgment[s] of a copyrighted work [are] … likely to be found to be prima facie infringing,? and defendant’s ?abridgment … elaborate [d] in detail far beyond what is required to serve any legitimate [transformative] purpose?); Toho Co., Ltd. v. William Morrow And Co., Inc., 33 F.Supp.2d 1206 (C.D.Cal. 1998) (relying, inter alia, on the fact that the infringing work contained detailed plot summaries of the Godzilla movies to find that the first fair use factor weighed in favor of the copyright plaintiff, despite the fact that the work also contained ?numerous biographies [and] analyses of the movies, including commentary, trivia and other bits of information?).

In Netcom On-Line II. supra, defendant posted verbatim copies of works copyrighted by the Church of Scientology on an Internet website ?with little or no added comment or criticism.? Id. at 1243. The court found that the works were only ?minimally transformative? because ?unlike the typical critic, [defendant] add[ed] little new expression to the Church’s works.? Id. The court specifically rejected defendant’s argument that his copying was fair use within the meaning of 17 U.S.C. ? 107(1) because subsequent visitors added further comments, concluding that while the copying of ?works that were previously posted by their authors on the basis of an implied license or fair use argument? might be justified, such a defense would not be available ?where the first posting made an unauthorized copy of a copyrighted work.? Id. at 1247, n.18.32

Similarly, in Religious Technology Center v. Lerma, 1996 WL 633131 (E.D.Va. 1996), defendant copied portions of works copyrighted by the Church of Scientology by downloading or scanning them into his computer and posting segments on the Internet. Id. at *4. He argued that his use was transformative, because he was a ?dedicated researcher delving into the theory and scholarship of Scientology,? and was ?providing materials which ?add new value to public knowledge and understanding, thereby advancing the goals of copyright as set forth in the Constitution.?? Id. at *5. The court rejected this argument, noting that it did ?not justify the wholesale copying and republication of copyrighted material,? and that ?[t]he degree of copying by [defendant] combined with the absence of commentary on most of his Internet postings, is inconsistent with the scholarship exception? Id.33

The court similarly rejected defendant’s assertion that ?saving … postings [from Internet newsgroups] for later review is indistinguishable from the temporary storage [of a television program] on a VCR tape that was upheld by the Supreme Court in Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417 (1984).? Id. at *6. Unlike the defendant in Sony, the court stated, defendant was ?not licensed to view or copy the Works? copyrighted by the Church. Id. Given this fact, it observed, the more appropriate analogy was to a situation in which ?the Sony defendant obtained an unauthorized copy of a television movie from a premium cable channel and then re-broadcast [it] on a public access channel.? This, the court noted, ?would be clearly prohibited.? Id.34

Defendants argue that, whether or not their copying is transformative, the first factor nonetheless should weigh in their favor because their general purpose is criticism – a purpose different than that served by posting the articles on the Times and Post websites. Defendants contend that posting articles on the Times and Post websites permits visitors to read current news and research archived articles published in the two newspapers. They contrast this with the purpose of posting articles to the Free Republic site, i.e., to enable visitors to comment upon and criticize media coverage of current events. Defendants assert that using the Free Republic site to read current articles would be impractical since there is a delay between the time information is posted to the site and the time it is indexed by third-party search engines.35 Additionally, they contend that the imprecision of searches would make it difficult to locate archived articles on their site. Plaintiffs dispute these claims, noting that the Free Republic’s search engine provides immediate search capability.36 More fundamentally, they assert, even if the general purpose of posting the articles is to foster comment and criticism, ultimately the purpose is the same as ?that [for which] one would normally seek to obtain the original – to have it available … for ready reference if and when [website visitors adding comments] need[] to look at it.? American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1995) (court found that the first fair use factor weighed against a defendant that encouraged its employees to make unauthorized photocopies of articles in scientific and medical journals and keep them in their offices for ready reference).

It appears clear that the primary purpose of posting articles to the Free Republic site is to facilitate the discussion, criticism and comment of the registered users that follows. The mere fact that criticism is involved, however, does not warrant an automatic finding that the first factor favors defendants. See Harper & Row, supra, 471 U.S. at 561 (list contained in ? 107 is not intended to be exhaustive or to single our any particular use as presumptively fair). Rather, this fact must be weighed together with other considerations in assessing whether the first fair use factor favors defendants. See Twin Peaks, supra, 996 F.2d at 1375-76 (??Purpose? in fair use analysis is not an all-or-nothing matter. The issue is not simply whether a challenged work serves one of the non-exclusive purposes identified in section 107, such as comment or criticism, but whether it does so to an insignificant or a substantial extent. The weight ascribed to the ?purpose? factor involves a more refined assessment than the initial, fairly easy decision that a work serves a purpose illustrated by the categories listed in section 107?).

b. Commercial Nature Of The Free Republic Website

The parties vigorously dispute whether defendants’ operation of the Free Republic website is for commercial or non-profit purposes, as those terms are used in ? 107. Their argument focuses on the for-profit or not-for-profit status of Free Republic, and on the extent to which defendants’ operation of the website generates revenue, donations, and commissions. Defendants argue that Free Republic is a non-profit organization and that they make no money from operating the website.

The undisputed evidence reveals that Free Republic is currently a for-profit company. It also demonstrates that Free Republic solicits donations from visitors to the website who wish to support its mission and operations.37 In addition to these direct solicitations, defendants concede that they have facilitated links to third-party web pages where donations to Free Republic and/or Robinson are requested, and where Free Republic-related souvenir items are offered to donors.38 Additionally, the Free Republic page advertises the website design services available through Electronic Orchard, and contains links to Electronic Orchard clients.39 Defendants maintain that these links have been included as a courtesy to Electronic Orchard customers, and that they receive no revenue from them. Accepting this as true, the fact that Electronic Orchard’s services are advertised and that Robinson is able to provide free links for his clients’ businesses demonstrates that he and Electronic Orchard derive goodwill, if nothing else, from operation of the Free Republic site. Consequently, the court concludes that defendants stand to profit from operation of the website in a variety of ways.40

The relevant inquiry, however, ?is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.? Harper & Row, supra, 471 U.S. at 562.41 Here, defendants and registered third-party visitors to the Free Republic site copy and post plaintiffs’ news articles, which are then available to others visiting the site free of charge. Since the general purpose of the site is to provide a forum where individuals can discuss current events and media coverage of them, pasting copies of plaintiffs’ articles assists in attracting viewers to the site. This in turn enhances defendants’ ability to solicit donations and generate goodwill for their operation and Robinson’s other business.

The decision of the court in Marobie-FL, Inc. v. National Assoc. of Fir Equipment Distributors, 983 F.Supp. 1167 (N.D.Ill. 1997), is instructive in this regard. There, defendant was a non-profit organization that placed copyrighted clip art on its website without paying the copyright owners. Id. at 1175. Despite defendant’s non-profit status, the court found that ?its conduct [could] still be considered commercial.? Id. It reasoned that defendant had obtained copies of the clip art for free, although they would ordinarily have cost money, and then made the files available on its website to members and other Internet users without charge. Id. This was beneficial to it, since the organization used the website ?for the commercial purposes of promoting the association (whose members pay dues) and generating advertising revenue.? Id. For this reason, the court concluded that defendant’s use of the clip art ?enhanced the Web Page and furthered … commercial purposes.? Id. See also Television Digest, Inc. v. United States Telephone Assoc., 841 F.Supp. 5, 9-10 (D.D.C. 1993) (court concluded that non-profit national trade association’s duplication and distribution of a copyrighted newsletter was not a non-commercial use because the trade association saved money by photocopying one subscription issue rather than ordering the number of subscriptions it required per reader).

Like the organization in Marobie-FL, defendants benefit from having copies of plaintiffs’ articles available free of charge to viewers visiting their website. The fact that the articles are posted on the web page allows visitors to review archived material without paying the fee they would be charged if they visited plaintiffs’ websites. It also enhances the Free Republic page and promotes support for the operation. Consequently, the court concludes that the use is commercial as that term is used in ? 107, regardless of Free Republic’s profit or non-profit status or motives.

c. Conclusion Regarding First Fair Use Factor

Balancing all aspects of the character and purpose inquiry, the court concludes that the first fair use factor favors plaintiffs. In Sony, the Supreme Court emphasized the need for a ?sensitive balancing of interests,? and eschewed a ?a rigid, bright-line approach.? Sony, supra, 464 U.S. at 455, n. 40 Here, the factors to be considered are the verbatim nature of the copying, the minimally transformative nature of the use, the fact that the copying is designed to facilitate comment and criticism, the fact that defendants’ web page is enhanced by use of the articles, and that fact that the copying assists in generating support, both financial and non-financial, for their operation. Balancing all of these considerations, the court finds that the first factor weighs against a finding of fair use in this case. See Rogers v. Koons, 960 F.2d 301, 309 (2nd Cir. 1992) (?[T]hough it is a significant factor, whether the profit element of the fair use calculus affects the ultimate determination of whether there is fair use depends on the totality of the factors considered, it is not itself controlling?); Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir. 1983) (?[W]holesale copying of copyrighted material precludes application of the fair use doctrine?);42 Netcom On-Line II, supra, 923 F.Supp. at 1243 (?despite Erlich’s purported critical purpose, the actual character of his use does not weigh heavily in his favor because it has only a slight transformative nature?); Lerma, supra, 1996 WL 633131 at *5 (?The degree of copying by Lerma, combined with the absence of commentary on most of his Internet postings, is inconsistent with the scholarship exception?); Marobie-FL, supra, 983 F.Supp. at 1175 (use of copyrighted clip art was commercial, inter alia, since it assisted the non-profit defendant’s ?promoti [on of its] association.?).

LOS ANGELES TIME, & The Washington Post Co. v. FREE REPUBLIC, CV98-7840-MMM(AJWX), 1999 WL 33644483 (C.D. Cal. Nov. 8, 1999)(bolding mine).

Now that’s analysis. How many paragraphs was Judge Pro’s first factor analysis? Exactly. And almost all of what he said was simply wrong.

The first factor favors Righthaven for the same reasons. Wholesale copying is not transformative, and the site where the article was posted to stood to gain from the postings by more pageviews. I just went to the website where Hoehn posted the article at issue in this case and saw that they have ads. http://madjacksports.com/ Your whole analysis, and Judge Pro’s as well, seems to focus on the wrong things.

Here, you’re just proving my suspicion – for the courts were not considering “commentary,” but “parody.” That is explicit: “the heart of any parodist’s claim to quote from existing material…”

Parody is a subset of commentary. Whatever the court says about parody necessarily applies to commentary.

I think it’s a fair consideration. Obviously, works that simply recite pure facts are not protected by copyright; whereas works that are entirely fictional, are more protected. Judging whether the original work is purely fact or fiction obviously has an impact on fair use. Like the other factors, this one should be a sliding scale, so it’s not at all inappropriate that the judge should fix the original work at some point on that scale.

And, again, he said this is the least important factor for considering fair use, which I also agree with. A lot has been made of this analysis, but even if this had tipped the scale to Righthaven/Stephens, I don’t think the overall ruling would have changed.

Keep in mind that the article that was copied was an opinion column from a newspaper. Regardless, courts have looked at wholesale copying of news articles that didn’t have any opinion in them and decided this factor against the copyist.

But every other newspaper does – as do almost every blogger, Twitter user, etc. And they do it because doing so adds more value to the work than not doing so. The practice is already widespread, and it is already accepted that uses such as this do not diminish the original work’s value (quite the opposite).

Now, I’m not saying that they still couldn’t show damage, just that they would be really hard-pressed to do so. As they should be, frankly. No other content producer on this planet honestly belives that this sort of use diminishes the content’s value. Most content producers would sell their grandmas on the black market for this sort of “infringement.”

I highly doubt that “no other content producer on this planet honestly believes that this sort of use diminishes the content’s value.” The content on the original site gets pageviews which brings in money to pay for overhead and reporters’ salaries, etc. It cost nothing for the copyist to just copy and paste. It brings in money wherever they paste the material if that site is ad-driven.

Nice straw man. Nowhere did I say that. I said (and do say) that if you post my material and don’t make any money off it, it’s up to me to prove it’s damaging.

If I can prove it’s damaging, then “it’s all good” for me. But not for you, since I can destroy your business, or (if you’re not a business) take all your wages from now until you die.

It’s not a strawman at all. Using your logic, I can upload and embed an entire e-book, song, movie, or article and it’ll be fair use. Tell me why it wouldn’t be fair use if you disagree with my argument.