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.