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.

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Comments on “Judge Asks Righthaven To Explain Why Reposting Isn't Fair Use… Even When Defendant Didn't Claim Fair Use”

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26 Comments
Hulser (profile) says:

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.

Hulser (profile) says:

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.

Hephaestus (profile) says:

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.

Derek Bredensteiner (profile) says:

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?

Hulser (profile) says:

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.

Shawn (profile) says:

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.

Hulser (profile) says:

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.

Joe Escalante (profile) says:

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.

Anonymous Coward says:

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.

Rob Bodine (profile) says:

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.)

Mark says:

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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