Big, Big Loss For Righthaven: Reposting Full Article Found To Be Fair Use

from the vegas-smackdown dept

While Righthaven had previously lost one lawsuit on a fair use claim, that one involved only a partial reposting of an article. Righthaven is still appealing that ruling, but it might have a bigger problem on its hands. On Friday, a judge ruled that even reposting an entire article can be fair use, and that he planned to dismiss a case on those grounds. That spells trouble for Righthaven, which would lose the entire basis for its legal campaign and business model for the vast majority of its cases. In this case, the judge clearly understood what’s going on. Last year, we had noted that the judge had raised the fair use issue first, even though the defendant, the non-profit Center for Intercultural Organizing (CIO), hadn’t raised it.

Apparently, the judge was not satisfied with Righthaven’s attempts to explain why this wasn’t fair use. The judge, James Mahan, said both that he found the use to be fair, but also that there was simply no harm in having CIO repost the article, claiming that the market is not the same one. On top of that, the judge also pointed out that Righthaven is in an even weaker position on such cases, because it’s not actually using the copyrighted content itself. In other words, if the Las Vegas Review-Journal had sued, it might have a stronger argument. In fact, the judge pointed out that Righthaven seems to be trying to abuse copyright law to stifle free speech:

“Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit,” Mahan said.

This type of copyright use has a chilling effect on free speech and doesn’t advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.

Can’t wait to see how some of the Righthaven defenders in our comments — the same people who have been insisting that there simply is no First Amendment issue in enforcing copyright law — will respond to that.

Of course, the judge wasn’t done there either. He also noted that Righthaven’s position was made even weaker by its own failure to mitigate the problem by issuing any sort of takedown, but instead going straight to court.

Basically, this is a near complete smackdown of Righthaven on a variety of points raised by others. It’s not binding on other judges, but hopefully they will pay attention. Not surprisingly, Righthaven indicated that it plans to appeal this ruling. If it does so, this one should be interesting to watch. A ruling that supports the district court here could be precedent setting, and could be a very important fair use/copyright ruling that protects some basic free speech rights. Definitely one to watch.

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Companies: center for intercultural organizing, las vegas review-journal, righthaven, stephens media

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Comments on “Big, Big Loss For Righthaven: Reposting Full Article Found To Be Fair Use”

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256 Comments
Paul (profile) says:

It seems to me that the courts have bent over backwards to avoid addressing the fact that the Constitution requires copyright and patent law to promote the progress of science and the useful arts.

Maybe the fact that James Mahan out right calls out this requirement may force the courts to either rule that the law must abide by this constitutional requirement, or rule that the constitution doesn’t know what it is talking about….

I still can’t get my head around the idea that authors are spurred to write knowing that some corporation is going to make money off their works for 100 years after their death. In my own case, this would be a reason NOT to produce any commercial content…

Transbot9 (user link) says:

Re: Re:

Some may see it as a way to secure the future for not only their children, but their grandchildren as well (see: Tolkien Estate). Granted, the likelyhood that their books will become classics and turn into multi-million dollar franchises is slim, but one can dream.

Not that I agree with such thinking, but it is a valid point of view.

Anonymous Coward says:

Re: Re: Re:

Some may see it as a way to secure the future for not only their children, but their grandchildren as well (see: Tolkien Estate). Granted, the likelyhood that their books will become classics and turn into multi-million dollar franchises is slim, but one can dream.

Not that I agree with such thinking, but it is a valid point of view.

How exactly is that valid again?

Why is it that the public should be forced to pay for the wellbeing of authors’ children, but not for those of plumbers, or architects, or ditch-diggers, or every other vocation in the world?

Why the hell can’t an author’s heirs go make their own living? Why does the public have to support them?

Anonymous Coward says:

Re: Re: Re: Re:

How exactly is that valid again?

Why is it that the public should be forced to pay for the wellbeing of authors’ children, but not for those of plumbers, or architects, or ditch-diggers, or every other vocation in the world?

Why the hell can’t an author’s heirs go make their own living? Why does the public have to support them?

A plumber might build a plumbing business empire that he hands down to his heirs. An architect may build a building that he leaves to his heirs. An author creates a work, and the ownership of this work can be transferred to his heirs. Cognitively, I don’t see the difference between the plumber, the architect, and the author. Each one has built something of value that can be transferred upon their death. The fact that it’s an intangible right doesn’t change things for me. Ownership of stock is an intangible right. Do you think your stock portfolio should become public property when you die? Of course not. The fact that it’s intangible is meaningless in the eyes of the law, as it should be.

cc (profile) says:

Re: Re: Re:2 Re:

A plumber can pass down his physical and scarce property (be that a wrench or a plumbing business) to his children. Stocks and bank accounts are intangible but still scarce property — their value is reflected by a number, and basically when that number becomes zero their value becomes zero.

Intellectual monopolies, created for the specific purpose of encouraging creation, are not property. Extending them beyond the author’s death is stupid and indefensible.

Thwacht (profile) says:

Re: Re: Re:3 Re:

So what about branding and name-recognition?

The real value of the business that the plumber hands down to his kids is not in physical assets such as buildings and wrenches, but in the clientele that have grown to trust that particular plumbing business through years of solid work and good service. Being a good plumber is only part of it — to succeed, you also have to become the guy they call when they need a good plumber.

Isn’t that part of the value of LotR too? It’s not just that it is an entertaining and well-written story, it’s that the story’s characters and settings are known and loved by millions and millions of people around the world.

Thwacht (profile) says:

Re: Re: Re:5 Re:

‘Hereditary IP rights forever’ does seem like an unfortunate solution in many ways, but if you accept the idea of IP rights at all (many here don’t, I know), I am not convinced it is unfair.

Disney corp. has invested millions promoting Mickey Mouse for the last 70 years. Walt died in 1966 — how long should it be till I am allowed to exploit that promotion and start publishing my own Mickey Mouse cartoons?

I agree that forever seems like too long a time, but I think that wherever you draw the line short of forever will arbitrary, and it is difficult to defend anything arbitrary as ideologically “fair.”

Chosen Reject (profile) says:

Re: Re: Re:6 Re:

Mickey Mouse is trademarked. Trademark law is meant to protect consumers. As such, so long as Disney is using the Mickey Mouse trademark, no one should be able to. On the other hand, Steamboat Willie (which has Mickey Mouse in it) is a copyrighted work. It is also likely that it is in the public domain. Feel free to download it at will (if you can afford to hire Gregory S. Brown, Lauren Vanpelt, or Peter Jaszi after Disney takes you to court).

Thwacht (profile) says:

Re: Re: Re:5 Re:

Don’t the inheritors continually reinforce the business’ public goodwill by maintaining the same quality of service their ancestor provided?

Isn’t that (arguably) the same thing Tolkien’s estate corporation tries to do, by approving or denying proposals for new LotR games and movies, according to (interpretations of) their quality?

Anonymous Coward says:

Re: Re: Re:5 Re:

Any business left to inheritors can be maintained, sold, or driven into the ground by those inheritors. It can go bankrupt, into receivership, take or inflict damage. It can become a burden to inheritors who were unaware of problems going on prior to the owner’s death – they might inherit ongoing lawsuits or imminent demise through unpaid debt, an exodus of employees, outstanding violations of state or federal law, a failing or soon to be obsolete business model, a rapidly vanishing market, etc.

Certainly not all but many times I see this rather idealized vision of leaving a ‘legacy for our children’ regarding inheritance of assets or business or copyrights or what have you. And I’m not saying that this is not a noble goal or that copyrights should go into the public domain upon the death of the author (though that would not prevent survivors from using the material for gain in any way). There are consequences that many not have been realistically considered, is what I’m saying.

One might feel contented that their survivors will be taken care of via copyrights, and that’s all well and good. But inheritors may dump those rights into the laps of any corp. that offers a one time sum, a corp. that will profit from your work far more and for far longer than you had hoped your survivors would. Or they could hang onto them and become the sue-monsters that prey on people who would honor your work with recognition long after you’re gone…

I guess it doesn’t matter if you’re dead and beyond caring, but if you care when you’re alive, it could bear more thinking, perhaps.

This ‘legacy’ issue brings up stuff for me, recently lost my dad, who thought he had squared up all his affairs so things wouldn’t be difficult for us when he passed.

He was mistaken. He would’ve been horrified to know the extent of the travails we’ve gone through to settle his very small, property-less estate. It would’ve broken his heart.

Do your survivors and yourself a huge favor and take the fantasy out of legacy-leaving.

Jose_X (profile) says:

Re: Re: Re:4 Re:

>> The real value of the business that the plumber hands down to his kids is not in physical assets such as buildings and wrenches, but in the clientele

>> Isn’t that part of the value of LotR too? It’s not just that it is an entertaining and well-written story, it’s that the story’s characters and settings are known and loved by millions and millions of people around the world.

What do you think of the following analogy?

The inherited plumber clientele only stays because you can continue to offer better service or better products (an ongoing scarce good) than the competition. The competition is allowed to try and reproduce that identical services and products to try and win you over.

How would this carry over to writing?

We would allow competitors to study the story and try to approach, reproduce, or surpass the overall package. Maybe change parts of the story here and there or present the story with great sound, animation, print material, visual appeal, etc.

In each case, we would allow people always to try and recreate the experience as best as they can. We would expect that the one with the high reputation, even if they started slacking, would still work from an advantageous position.

That’s the analogy and it assumes copyright doesn’t exist. The continued value comes from recreating a quality service or product (think of a quality performance/presentation or book/film).

Gwiz (profile) says:

Re: Re: Re:2 Re:

A plumber might build a plumbing business empire that he hands down to his heirs.

A bit of a fault with your logic here.

When a plumber hands down his plumbing business to his heir – the heir is expected to work (by pipefitting, being a manager or whatever) to maintain the business and create new income. Anyone who just expects that plumbing business to keep generating income all by itself will go bankrupt.

Not quite the same as inheriting a copyright on something already created.

ATM says:

Re: Re: Re:4 Re:

“any new movies and video games based on LotR have been created since JRRT passed away. In your analogy, wouldn’t this count as maintaining the business and generating new income?”

No it doesn’t because these new products are not produced by the heirs of Tolstoy but by other businesses. all what Tolstoy’s heir had to do was sign on the dotted line and cash the royalty checks.

Jose_X (profile) says:

Re: Re: Re:5 Re:

Owner v. worker

..in the context of tangibles:

If someone owns a building, that person can opt not to hire any managers or any workers or to hire those whom that person wishes and try to take whatever percentage they can manage. That is generally what we practice in the US when it comes to building ownership. Ownership has lots of leverage because it largely has ultimate control.

..in the context of intangibles:

But is ownership a good idea if we are talking about having a person in full control of all “buildings” potentially created for $0 as a cookie cutter of that building? In other words, is legally enforced ownership of classes of intangibles a good idea?

Yes, the original building owner put together that building that people like (obviously based on influences and teachings from society). You can argue that without that person, that building in that detailed form would not likely exist. But would that person not have created that without building copyright? Isn’t the person gaining from being known as the creator of that great building expression? Didn’t that person gain from ideas and many details and influences received from society for free? Why wouldn’t they create?

When looking at the overall effect of copyright law, we have to ask if the law is promoting progress or not. If what is being gained from copyright greater than what would exist without copyright. With the Internet, it’s looking like copyright (the totality that is the law today) is sure getting in the way of likely progress. A weaker copyright might be ideal. In any case, let’s not forget http://www.spiderrobinson.com/melancholyelephants.html

Thwacht (profile) says:

Re: Re: Re:5 Re:

What if your favorite brand-name plumber company is so successful that it has to sub-contract with other plumbers, whom you have trained to provide the brand-name style of service that your customers expect?

If one of those contractors provides the quality of service you expected when you called, how does it make any difference whether the actual inheritor of the brand name is back at the office working on the financial books? You still got exactly what you wanted when you decided to call your favorite brand name plumber. You’ll probably call them next time your pipes are clogged, too.

I think the kid should still be allowed to inherit the family plumbing business, even if he decides to become an accountant instead of a plumber like his dad.

Gwiz (profile) says:

Re: Re: Re:4 Re:

Many new movies and video games based on LotR have been created since JRRT passed away. In your analogy, wouldn’t this count as maintaining the business and generating new income?

Did JRRT’s heirs create the new works themselves? If not, then all the heir’s have done is rest on the laurels of JRRT’s work.

It would be like the plumber’s son who does nothing but the bookkeeping and expects the money to keep flowing in like when his father was working 10 hour days unclogging drains.

In my opinion, artists should be able to monetize thier work, but copyright shouldn’t last more than 10 or 15 years. That’s plenty of time to make a profit (if you don’t, then it’s your own damn fault). After that the work should fall into the public domain. That was the original deal when the founding fathers first granted the government imposed monopoly anyways.

Gwiz (profile) says:

Re: Re: Re:6 Re:

As long as he keeps sending acceptable employees out to fix your pipes,…

That’s exactly where the analogy between the plumber’s son and the author’s son fails.

Someone from the plumber’s shop is out there either providing new services to customer’s or creating new products to sell.

They don’t just sit there and collect from the work that Daddy plumber did while he was alive. See how it’s different?

Mike C. (profile) says:

Re: Re: Re:4 Re:

You have it all wrong.

The plumbers “creative work” is the creation repair of pipes and plumbing systems. Each job he completes is a “work” much the same that each novel from JRRT was a “work”. When the plumber hands the “business down to an heir, the heir MUST continue to create NEW “works” or else the business will fail.

The LotR rights handed down to the heirs are still the original creative “works”. The business built around the work is irrelevant (albeit profitable). In the end, JRRT and heirs still only have 4 “works” (Hobbit + 3 LotR books) that they’re working with.

To compare back to the plumber, it would be as if the plumber had done all the plumbing work in Empire State Building during construction and for the rest of his life, he was paid a monthly salary. Additionally, for 70 years after his death, that monthly salary passed to his heirs. On top of all that, if anyone wanted to make changes to the plumbing in the building, they would have to license rights to do so from the plumber or his heirs. Still sound fair?

Anonymous Coward says:

Re: Re: Re:2 Re:

Yes a plumber can hand down his empire, but the plumber should not have a right to stop other people from trying to build their own plumbing empire – that would be monopoly. That is what copyright is. A government granted monopoly. Not property. So if you like monopoly, then by all means, support longer terms for copyright.

Thwacht (profile) says:

Re: Re: Re: Re:

The public isn’t forced to support anything. If individuals in the public decide that they want to purchase new copies of LoTR, they have to pay something to the Tolkien estate.

I’m not necessarily saying this is the way it should work. I’m just saying it doesn’t do me any good to look at it as some evil, sweeping repression of the public at large.

If a plumber wants to charge clients some sort of ongoing subscription fee for his work, to support his family after he’s dead, he can write up his contracts that way. The only problem is that there are lots of other plumbers out there, and most people will instead choose one who only charges a one-time fee.

There is only one LoTR. You don’t have to buy a copy if you don’t want to.

Anonymous Coward says:

Re: Re: Re:2 Re:

The public isn’t forced to support anything.

Of course they are – they are forced to support Tolkein’s heirs by the law keeping the works from the public domain. Do you not understand copyright at all?

If individuals in the public decide that they want to purchase new copies of LoTR, they have to pay something to the Tolkien estate.

And if they want to print their own copies, or adapt the works, then what? Oh yeah, they’re not allowed.

If a plumber wants to charge clients some sort of ongoing subscription fee for his work, to support his family after he’s dead, he can write up his contracts that way.

You haven’t made an argument here – you’ve just restated my assertion.

Why does it have to be a choice? Why is there no law forcing this arrangement on the public? Your entire response seems to be “authors heirs get a free ride because the law says they do.”

What I asked was *why* do authors heirs get a free ride, when other vocations don’t?

Thwacht (profile) says:

Re: Re: Re:3 Re:

I think this “free ride” you are talking about is based on the brand name more than on the original work itself. EA wouldn’t keep paying to make new LotR games if we weren’t all already familiar with the specific characters and settings of the books (regardless of whether we actually ever read the books).

I enthusiastically acknowledge that branding is much more about the businesses of marketing and promotion than about the original creativity of the work.

Brand names are passed down in all sorts of vocations, however. We may self-righteously hate the deceptive economic mechanics of promotion and marketing, but these endeavors require investments of time and money, too — not purely a free ride.

To be clear, tho, there is a choice. Tolkien’s estate corporation could release control of LotR if it decided to, the same way a plumbing company is free to give up its hard-earned brand name.

In any case, I’m still pretty sure that the public is not forced to buy any books or movies or games that it doesn’t want to buy. Am I forced to support Disney just because nobody’s giving away free copies of High School Musical?

RadialSkid (profile) says:

Re: Re: Re:4 Re:

EA wouldn’t keep paying to make new LotR games if we weren’t all already familiar with the specific characters and settings of the books (regardless of whether we actually ever read the books).

The problem? Only mega-huge media companies like EA can actually afford to produce adaptations of Lord of the Rings. No upstart video game developer could make a LOTR game, nor could your average independent filmmaker afford the rights to it.

This is the problem of copyright…it has become perverted to the point that it is only about protecting legacy jobs and preventing competition from anyone outside of the corporate oligarchy.

Jose_X (profile) says:

Re: Re: Re:4 Re:

>> Tolkien’s estate corporation could release control of LotR if it decided to, the same way a plumbing company is free to give up its hard-earned brand name.

>> In any case, I’m still pretty sure that the public is not forced to buy any books or movies or games that it doesn’t want to buy.

You continue to miss the point.

The problem is that others are not allowed to compete for similar services and products and brand improvement when we apply copyright law.

That is a fundamental difference between the author example and the plumber example.

Thwacht (profile) says:

Re: Re: Re: Re:

That’s a pretty big assumption, I think, considering the way that most of the grandparents I know feel about their grandkids.

But why does intention have anything to do with it in the first place?

The plumber’s intention is to to fix the pipes, but that doesn’t mean he shouldn’t invest his profits in a business his children will inherit, or use them to buy presents for his grandchildren.

Richard (profile) says:

Re: Re: Re:2 Re:

And Tolkien no doubt built a substantial fortune from his books in his lifetime – and would still have had plenty to leave to his heirs even without post-mortem rights.

Tolkien was a committed Christian and probably would have had some moral doubts about copyright. His friend C S Lewis certainly did – he believed that an author should rejoice in his works for their intrinsic value – rather than from proprietorial pride. He would have seen the venal pursuit of royalties as even less justifiable.

Anonymous Coward says:

This is the sort of ruling that gets tossed out pretty quickly, it is clearly a huge reach past what “fair use” has been considered in the past, and well beyond the scope of the court. Effectively, it is legislating from the bench, by ignoring much of the law and focusing on a narrow view.

I don’t think of it as a smackdown on Righthaven, rather it is proof that judicial activism is alive and well, which is not a good thing for either party in the case.

Killer_Tofu (profile) says:

Re: Re:

“legislating from the bench” is short form for ‘the judge made a decision that I do not agree with’.

Once upon a time it actually meant that they were very far reaching but the term has been over used a lot these days by the Republicans and Democrats when the only reason they had to use it is that they simply do not like the outcome.

Anonymous Coward says:

Re: Re: Re:

“legislating from the bench” is short form for ‘the judge made a decision that I do not agree with’.

No, legislating from the bench is when a judge essentially attempts to re-write a law by misinterpretation, either overy broad or narrowly, or ignoring or excluding clauses in a law in order to reach a judgement. In this case, this version of “fair use” is so far off the map from other cases, it can only be arrived at by a near intentional misreading of the law, or by ignoring the balance created by previous rulings.

Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe.

It isn’t the sort of judgement that stands very long, as it is clearly way out of bounds.

Anonymous Coward says:

Re: Re: Re:2 Re:

It isn’t common sense to turn fair use from an affirmative defense into a major hurdle for rights holders to overcome before moving forward with a case. What the judge has suggested is that the standard for even being able to claim copyright infringement is to prove that the act of copying and republishing the work furthers the very narrow definition of encouraging creativity. That is 180 degrees out of sync with the actual copyright law.

It’s not common sense. It’s an uncommon judicial error.

Richard (profile) says:

Re: Re: Re:3 Re:

It isn’t common sense to turn fair use from an affirmative defense into a major hurdle for rights holders to overcome before moving forward with a case.

It is to me – and I suspect to anyone outside the “rightsholder bubble” that you seem to inhabit.

Is it really that unreasonable to make the plaintiffs prove their case.

It isn’t 180 degrees out of sync with actual copyright law – it’s merely 180 degrees out of sync with what you would like copyright law to be (and seem to have convinced yourself that it is.)

Anonymous Coward says:

Re: Re: Re:4 Re:

Not at all. If the law says “copyright is X, and fair use is an affirmative defense only” and a judge now sayins “Copyright is Y, and fair use is a standard to overcome before anything”, it is 180 degrees out of sync with the law.

Fair use is an affirmative defense, something used by the defendants as a “yes, I broke the law but” type process. It isn’t something the plaintiffs have to overcome at the start.

DannyB (profile) says:

Re: Re: Re:5 Re:


Not at all. If the law says “copyright is X, and fair use is an affirmative defense only” and a judge now sayins “Copyright is Y, and fair use is a standard to overcome before anything”, it is 180 degrees out of sync with the law.

Fair use is an affirmative defense, something used by the defendants as a “yes, I broke the law but” type process. It isn’t something the plaintiffs have to overcome at the start.

Affirmative defense does mean it is a standard the copyright owner must overcome.

It doesn’t mean “yes, I broke the law”. It means “I copied, but have an affirmative defense that allows this particular use”.

The burden is on the copyright owner to show that it is not fair use. There are very limited uses that are fair use, so this should not be that difficult. Or maybe the copyright owner ought to be looking for actual infringements that are not fair use.

Richard (profile) says:

Re: Re: Re:5 Re:

air use is an affirmative defense, something used by the defendants as a “yes, I broke the law but” type process. It isn’t something the plaintiffs have to overcome at the start.

False – try reading the actual statute – (I have posted the relevant excerpt elsewhere on this thread.)

Copying is either legal or illegal. The concept of “yes I broke the law but” would belong in the area of mitigating circumstances. Copying which is fair use is legal and that is all there is to it. As such it can be established at any stage in the progress of a case – just like anything else.

btr1701 (profile) says:

Re: Re: Re:5 Affirmative Defense

> Fair use is an affirmative defense,
> something used by the defendants
> as a “yes, I broke the law but”
> type process.

Fair use is not an affirmative defense. It’s a statutorily recognized exception to the copyright law itself.

As you correctly note, when an affirmative defense is used (self-defense in the case of homicide, for example), the defendant admits to the violation of law. The burden of proof then shifts from the prosecution to the defendant, who must then prove that his/her actions meet the requirements by a standard of “clear and convincing evidence” (less rigorous than “beyond a reasonable doubt” but greater than “preponderance of the evidence”).

None of this applies to fair use. Fair use is not a violation of the copyright law on its face and as such the defendant need not prove himself “innocent” in order to assert it. The clearest sign that fair use is not an affirmative defense is that the burden of proof in a copyright infringement case never shifts to the defendant. It always remains with the plaintiff, regardles of whether fair use is plead or not.

Anonymous Coward says:

Re: Re: Re:6 Affirmative Defense

Fair use is not an affirmative defense.

Wanna bet?

“Fair use is an affirmative defense . . . .” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599, 114 S. Ct. 1164, 1181, 127 L. Ed. 2d 500 (1994).

It worries me that you’re a federal agent, yet you consistently display your ignorance of the law in the comments section.

Anonymous Coward says:

Re: Re: Re:6 Affirmative Defense

None of this applies to fair use. Fair use is not a violation of the copyright law on its face and as such the defendant need not prove himself “innocent” in order to assert it. The clearest sign that fair use is not an affirmative defense is that the burden of proof in a copyright infringement case never shifts to the defendant. It always remains with the plaintiff, regardles of whether fair use is plead or not.

That is not correct. The plaintiff in a copyright infringement case bears the initial burden, and they must show that they own the copyright and that the defendant copied the work, i.e., establish a prima facie case of infringement. The burden then shifts to the defendant to prove a defense, such as fair use.

Ken Bingham (profile) says:

Re: Re: Re:7 Affirmative Defense

That’s ridiculous. If it is fair use then it isn’t an infringement. Remember using any copyrighted even with permission is fair use. Fair use simply covers all the legal ways you can use copyrighted material with or without permission. The only argument is how wide and how many ways fair use can be applied.

Fair use has gotten little hearing in the courts because of the draconian copyright laws have scared almost everyone accused of copyright infringement, even if they are well within their fair use rights into settling because of the costs and risks of bringing it to court. Righthaven has unethically taken advantage of this fact for no other reason that making money.

What is ironic is that Righthaven’s methods so offended everyones sense of justice that people had to fight back and now there is going to be many precedents set that will more fully define it and it is not going to be to Righthaven’s liking.

Anonymous Coward says:

Re: Re: Re:8 Affirmative Defense

That’s ridiculous. If it is fair use then it isn’t an infringement. Remember using any copyrighted even with permission is fair use. Fair use simply covers all the legal ways you can use copyrighted material with or without permission. The only argument is how wide and how many ways fair use can be applied.

Fair use has gotten little hearing in the courts because of the draconian copyright laws have scared almost everyone accused of copyright infringement, even if they are well within their fair use rights into settling because of the costs and risks of bringing it to court. Righthaven has unethically taken advantage of this fact for no other reason that making money.

What is ironic is that Righthaven’s methods so offended everyones sense of justice that people had to fight back and now there is going to be many precedents set that will more fully define it and it is not going to be to Righthaven’s liking.

No offense, but you don’t seem to have any idea what you’re talking about.

Fair use is an affirmative defense and, as such, the burden of proving fair use *565 is always on the party asserting the defense, regardless of the type of relief sought by the copyright owner. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, —-, and n. 20, 114 S.Ct. 1164, 1177 and n. 20, 127 L.Ed.2d 500, 522 and n. 20 (1994) (citing Harper & Row, 471 U.S., at 561, 105 S.Ct. at 2230; H.R.Rep. No. 102-836, p. 3, n. 3 (1992)); see also American Geophysical Union v. Texaco Inc., 37 F.3d 881 (2d Cir.1994).16 Of course, as an affirmative defense, the issue of fair use is not relevant until the copyright owner has established a prima facie case of infringement. See H.R.Rep. No. 102-836 p. 3. To make out such a case, a copyright owner must demonstrate ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of the expression. See id.; see also Association of Am. Medical Colleges v. Mikaelian, 571 F.Supp. 144, 149 (E.D.Pa.1983), aff’d without opinion, 734 F.2d 3 (3d Cir.1984) (?Mikaelian ?).

Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 564-65 (N.D.N.Y. 1995).

That’s basic stuff. You seem quite confused.

Anonymous Coward says:

Re: Re: Re:6 Affirmative Defense

Fair Use is a classic affirmative defense. Yes, it is recognized as an exception to the rights granted a copyright holder under Title 17, but it is incumbent on the defendant to demonstrate that it qualifies for the benefit conferred by the fair use provision.

Frankly, it is much more useful to think of fair use in the context of how litigation is conducted. In the typical case, when a complaint withstands the many means that are available to a defendant to challenge the legal sufficiency of a complaint, a defendant is eventually required to file an answer to the complaint, and it is within the answer that affirmative defenses are raised.

Anonymous Coward says:

Re: Re: Re: Re:

“Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair.”

Isn’t it how it’s supposed to work? At least, from a layman’s perspective (mine), it seems reasonable. Fair use should be assumed, until proven otherwise (you know, innocent until proven guilty).

Anonymous Coward says:

Re: Re: Re:2 Re:

Actually, no. Please understand: Fair use is an affirmative defence, not a reason for summary dismissal of a case. It is something that is only argued after the copyright violation has been proven. Until the copyright violation is proven, there is no possible claim of fair use.

Fair Use isn’t a question of “innocent until proven guilty”, it is “guilty but…”. You cannot claim fair use without first admitting guilt.

Bruce Ediger (profile) says:

Re: Re: Re:3 Re:

Actually, no. Please understand: the commentor above *did* comprehend that fair use is an affirmative defense. He/she clearly stated that: “Fair use should be assumed, until proven otherwise (you know, innocent until proven guilty)”.

The commentor believe that Fair Use *should be* a question of “innocent until proven guilty”. I tend to agree. Making Fair Use into an affirmative defense puts “intellectual property” ahead of freedom of speech. That seems like a losing position to me, except for a very few “rightsholders”.

Anonymous Coward says:

Re: Re: Re:4 Re:

Welcome to LawyerLand! The important thing to remember is if you don’t like any of the rides in LawyerLand then it’s up to you to change those rides through an utterly corrupted legislative process that allows innocent human beings, who have not been charged with a crime, to be tortured!

LawyerLand! Once you enter the premises of LawyerLand, you are not free to leave. Please read the fine print and if you’re having trouble understanding the legalese then it’s not the law’s fault you’re confused, you’re just stupid.

LawyerLand!

Richard (profile) says:

Re: Re: Re:3 Re:

Fair use is an affirmative defence, not a reason for summary dismissal of a case. It is something that is only argued after the copyright violation has been proven. Until the copyright violation is proven, there is no possible claim of fair use.

From the law
“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” (my emphasis).

So how can fair use be raised after infringement has been admitted?

The concept of fair use rights being “only a defence” is not really tenable. Either the use is legal or it is not. If it is legal then there is no infringement and so the court can use fair use to throw out a case just as it can for any other reason if the judge believes that the situation is clear. (The arguments about “innocent until proven guilty” or the reverse don’t apply as this is a civil matter.)

Current legal practice of only raising fair use when other issues are exhausted merely reflects the practical fact that fair use is usually more difficult to establish or disprove and does not mean that fair use has a different legal status from other defences. It is up to the court to decide what order to consider the issues on the basis of coming to a conclusion as quickly as possible. The fact that the result of this is usually to consider fair use last doesn’t have any legal status.

Anonymous Coward says:

Re: Re: Re:4 Re:

So how can fair use be raised after infringement has been admitted?

Fair use is a defense. This is a fact, and there is no debate. You seem really confused, so here’s the simplified version: The plaintiff shows that he owns the copyright and that the defendant copied the work. If the defendant can’t prove some affirmative defense, like fair use or license, it’s infringement. If the defendant can prove a defense, it’s not infringement.

Richard (profile) says:

Re: Re: Re:5 Re:

No, it is you that is confused. As the law says (see above) “fair use…is not an infringement”. Why do you insist that two concepts exist when in reality there is only one?

It’s a simple concept. An act is either legal or illegal. There is no hierarchy of reasons for being legal/illegal.

You can of course bring fair use in as a defence if accused – but that has no different legal status any other reason why the copying was legal.

Your confusion is addressed by Wikipedia thus
The frequent argument over whether fair use is a “right” or a “defense”[20] is generated by confusion over the use of the term “affirmative defense.” “Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses,” and so it does not characterize the substance of the defendant’s actions as “not a right but a defense.”

If you think the Wikipedia article is wrong then you can go and edit it yourself – and see how far you get…

Anonymous Coward says:

Re: Re: Re:4 Re:

Danny, read what you wrote:

It is “I copied this, but my use falls under fair use and is therefore permitted.”.

I bolded the important part, the part that explains what an affirmative defense is: “I copied this”. It is an admission of copying something you don’t have rights to, followed by “but…” and the explanation that details the fair use.

It is exactly “guilty but…”, because fair use doesn’t exist until something is copied without permission.

Ron Rezendes (profile) says:

Re: Re: Re:3 Re:

“Fair Use isn’t a question of “innocent until proven guilty”, it is “guilty but…”. You cannot claim fair use without first admitting guilt.”

So Copyright laws are exactly the opposite of all the other laws in the US? You have to be guilty before you can be innocent.

Soak that up for a minute and understand why so many people are opposed to the current state of copyright laws and you may reach an epiphany of such outstanding proportions that your head just might explode.

Thomas (profile) says:

Re: Re: Re: Re:

“…Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all …”
Wrong and Wronger.
That is exactly what copyright law was originally intended to do. Fair use IS the default. Copyright is a restriction of free speech for the purpose of granting a commercial monopoly. You absolutely, positively SHOULD have to prove some harm and damage before you are able to inhibit free speech. “Innocent until proven guilty” is still a core concept in the rule of law, regardless of what copyright maximalists would like.

Jose_X (profile) says:

Re: Re: Re:2 Re:

>> That is exactly what copyright law was originally intended to do. Fair use IS the default.

Yes.

The Constitution states .. blah blah [monopoly] blah blah, to promote the progress.

Then we amended the Constitution to clarify freedom of speech cannot be denied by government law.

If a copyright monopoly law does not promote the progress or abridges free speech, it is unconstitutional.

Anonymous Coward says:

Re: Re: Re: Re:

[…]as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair. It would require the showing that the use specifically hurt creativity.[…]

what you posted sounds like a definition of innocent until proven guilty, so IMHO the judge nailed it.

hrusha says:

Re: Re: Re: Re:

Wait… I think that this is an attempt at AC humor!

“Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair. It would require the showing that the use specifically hurt creativity.”

THAT ladies and gentleman is EXACTLY what the Fair Use clause reads. The fact that it has been subverted into this:

“That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe.”

just goes to show how messed up the system really is.

To the AC: either this was a brilliant post on your part and deserves and ‘insightful’ on pointing out how broken the system is, or you really believe that Fair Use as it stands today is just fine, and going to a saner definition of it would rob you of all your money.

Joe (profile) says:

Re: Re: Re: Re:

Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair. It would require the showing that the use specifically hurt creativity. That is not what the copyright laws require at all, and is an incredible (and seemingly intentional) attempt to scrap the vast majority of the copyright law in a single swipe.

Yeah, ain’t it cool? 😀

DannyB (profile) says:

Re: Re: Re: Re:

Essentially, this ruling would be a gut job on copyright, as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair.

That is how it has always been. So this ruling changes nothing and does not gut copyright.

This ruling affirms how things are and have been and should be.

Killer_Tofu (profile) says:

Re: Re: Re: Re:

Fair Use should be the common sense logical thing that they should have to overcome. It is human nature to share and share alike. When you have something that is infinitely available like ideas and digital .. well, anything, then people will share it. The laws are out of touch with reality and this judge seems to perhaps be bringing things back down to earth a little. Also, even from where the laws stand right now I do not see this as really far reaching. Fair Use is already in the law after all.

Also, with the way copyright is abused by the lawyer trolls and evil companies and estates of the world these days, I think them having to take fair use into account is a very solid thing. Otherwise the scenarios just get worse and worse because all they have to do is say that they believe that fair use did not apply. And if that is all they need to do, and not pay the defenders lawyer fees when it is obviously fair use, then we end up with the rich abusing the poor who are only following human nature.

It is also worth noting that there have been a few other cases of judges saying that litigators should take fair use into account before filing.

pringerX (profile) says:

Re: Re: Re: Re:

“…as it would first shift the burden in fair use cases. It would make fair use the default, and require the plaintiff to show that the use isn’t fair.”

Wait a second, did I just read that right? Are you suggesting that copyright violators are guilty until proven innocent? Fair use should indeed be the default, because that is what encourages greater creativity- and that is what copyright was intended to support.

Anonymous Coward says:

Re: Re: Re: Re:

And your problem with having to show that the use specifically hurt creativity is just the fact that this can’t be shown… so requiring the plantiff to actually prove that they were harmed would undermine this whole ‘sue over copyright and profit’ movement going on amongst the less savory of the lawyers (savory referring to their character, not their flavor….)

Anonymous Coward says:

I have not read the court’s opinion, but as reported in the issue above undue emphasis is placed on fair use since it is an affimative defense, and the burden of proof (preponderance of the evidence) resides with the party asserting the defense. Thus, this basis is relatively weak, and perhaps even wrong, if the burden was placed on the plaintiff.

A stronger argument, or so it seems to me, it that the “pseudo-assignments” are highly questionable as a matter of law, bordering on champerty. For all practical intents and purposes, these assignments are little more than an attempt by a group to secure “just enough” rights to be able to say with a straight face that they are a rights holder and have standing to assert such rights in federal court on its own behalf.

As you correctly note, the cases may be another matter altogether if the newspaper was the plaintiff, which is not the case here.

FWIT, I suspect that the vast majority of attorneys who regularly practice (and fully understand) copyright law would view these cases with a jaundiced eye.

Paul (profile) says:

It seems to me that the courts have bent over backwards to avoid addressing the fact that the Constitution requires copyright and patent law to promote the progress of science and the useful arts.

Maybe the fact that James Mahan out right calls out this requirement may force the courts to either rule that the law must abide by this constitutional requirement, or rule that the constitution doesn’t know what it is talking about….

I still can’t get my head around the idea that authors are spurred to write knowing that some corporation is going to make money off their works for 100 years after their death. In my own case, this would be a reason NOT to produce any commercial content…

coldbrew says:

Nothing stops these megalomaniacs. If a judge rules in a way they favor, it’s “the law.” However, if the ruing is not what they like, it’s “legislating from the bench.” Noting that these laws were put in place to “promote the progress” doesn’t figure into any of their logic.

They are so obsessed with having a monopoly from which to extract revenue, they will dismantle the whole foundation of the country for their own financial needs.

I kind of wish these idiots would stop commenting, and/or that TD regulars would stop responding. They will NEVER concede. Ever. They already came to their conclusion, and nothing will ever convince them to view these ideas in an open-minded way.

Anonymous Coward says:

Can’t wait to see how some of the Righthaven defenders in our comments — the same people who have been insisting that there simply is no First Amendment issue in enforcing copyright law — will respond to that.

Not sure what you’re expecting. Copyright has its own built-in First Amendment safety valves. The judge is using one of those safety valves, fair use, to find for the defendant, albeit, erroneously.

A ruling that supports the district court here could be precedent setting, and could be a very important fair use/copyright ruling that protects some basic free speech rights. Definitely one to watch.

The Ninth Circuit will overturn this if given the chance since it just doesn’t jive with how fair use really works. Righthaven would be crazy not to appeal this. You’ll get precedent alright, but you won’t like it. And despite what you think, a reversal would protect basic free speech rights more than an affirmance would. You don’t understand what free speech is, apparently. It isn’t the right to make other people’s speech.

Anonymous Coward says:

Re: Re: Re:

Let me clarify that I think this gets overturned on procedural issues. The Ninth Circuit will reverse and remand because fair use is not an issue that can be decided on a motion to dismiss. That won’t stand up. On remand the judge will just find fair use again. Then it’ll be appealed again, and the Ninth Circuit will address the merits. Will the Ninth Circuit agree that it’s fair use? I doubt it. These are my thoughts.

Bruce Ediger (profile) says:

Re: Re: Re: Re:

> I think this gets overturned on procedural issues.

Oh, so they’re overturn on a technicality. Rightness or wrongness doesn’t enter into it. The technicalities are wrong.

Isn’t this the kind of thing that drives most Real Americans crazy about the Court system? We want justice, and you and the other Officers of the Court offer us paperwork.

Anonymous Coward says:

Re: Re: Re:3 Re:

I should mention too, that I was addressing his point that by quoting the person I was answering in the comment section I was somehow breaking copyright laws. I was saying that that position would destroy free speech. I wasn’t talking about posting newspaper articles as you misread my comment to mean.

coldbrew says:

Re: Re: Re:3 Re:

If you believed that copyright is the “engine of free expression,” as the Supreme Court does, that might make more sense to you.

If you or anyone truly believes that, we need to give you lobotomies and put you on an island somewhere.

It does help me understand your perspective better, however. Thanks for that, I guess…

Jose_X (profile) says:

Re: Re: Re:3 Re:

>> If you believed that copyright is the “engine of free expression,” as the Supreme Court does, that might make more sense to you.

I think the Court could reasonably conclude that trains are driven from behind. This can be done with trains with very few cars.

The Court’s narrow majority ruling was not really considering how best to drive the very very long and fast trains that run on the Internet Super Trackway.

Marcel de Jong (profile) says:

Re: Re: Re: Re:

Are you freaking kidding me? How would this ruling destroy free speech on the Internet? It favours the fair use, thus making it easier to quote from articles and have your say about them. And if someone lifts your article and gives his comments on it, we see more examples of free speech.

Now, with the Righthaven lawsuits, it’s still up in the air, and the uncertainty is a very definite chilling effect on free speech. Any ruling in favour of fair use is a win for free speech, not a loss.

Try again, troll.

Anonymous Coward says:

Re: Re: Re:2 Re:

You don’t seem to understand, and I apologize if it was unclear. The person I was answering suggested that I myself was breaking copyright laws by quoting the words of the person I was responding to. I was saying that that position would destroy free speech on the internet, and it surprised me that he was even suggesting it.

MrWilson says:

Re: Re: Re:3 Re:

You should also apologize for misunderstanding and then misstating my position.

I was pointing out the hypocrisy of the claim that free speech doesn’t cover “the right to make other people’s speech” and quoting someone.

My position is that free speech most definitely covers the right to repeat other people’s speech (technically, you can’t “make” other people’s speech or else it would be your speech).

If you can’t repeat others, fair use is out the window, academic citation is out the window, journalistic reporting is out the window.

I was pointing out that such a description of free speech is quite absurd.

Does your spurious delineation of what free speech covers also cover misrepresentation of my speech?

Jose_X (profile) says:

Re: Re:

>> You don’t understand what free speech is, apparently. It isn’t the right to make other people’s speech.

Free speech includes (or should) the right to use other people’s speech to enhance your own as well as to confirm others’ speech as representative of yours. These usages efficiently enhances the original speech and its author. In some cases, a monopoly might help the first author more, but even here it would be at a cost to the speech others could create.

Karl (profile) says:

Righthaven is safe

Not to worry. Even if every single lawsuit gets tossed out on its ass, they’ll still have a profitable strategy.

Instead of suing, they’ll just claim “criminal infringement,” and ICE will seize their websites ex parte.

Righthaven successfully intimidates the other defendants into paying their extortion money, all without spending a dime in court. It’s a win-win!

…Well, except for the public good, due process, and the First Amendment. But who cares about all that? We’ve got “criminals” to catch!

coldbrew says:

Re: Re: Re:2 Righthaven is safe

Yes. My point was the person that registered that domain does not even have the backbone to connect it to his real-life self (much like those mooo.com users you think deserve no 1st amend protection). He can’t stand behind any argument he makes. Typical lawyer that has huge conflict of interest and is not interested in the kind of transparency that Masnick exemplifies daily.

Anonymous Coward says:

Re: Re: Re:3 Righthaven is safe

A link to a professional shilling outfit, that downplays the value of due process and the First Amendment to hype copyright, is to be considered substantive, but anyone calling you out on that extreme and somewhat disturbing bias is trolling. Got it.

Wow, you really think that? I’m sorry, cc, but you sound like a conspiracy theory nut by even posting that. Have you looked up his law license with the state bar? Maybe start there before you go spreading FUD. Maybe get some sleep and take the tinfoil hat off. Good grief. You sound like a fucking idiot.

Karl (profile) says:

Re: Re: Righthaven is safe

The always excellent Terry Hart shoots down more of the rhetoric.

I’ve debated Hart on here before. If even I can win an argument against him, I wouldn’t exactly call him “excellent.”

One simple example from this article. He says:

Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don?t need a judge to determine that something depicts a minor engaged in explicit sexual conduct.

CDT v. Pappert said, explicitly, that he is wrong. An objective determination of child pornography does not allow the removal of non-infringing speech. That would be prior restraint.

It’s also odd that people keep bringing this up, since the “factual, objective determination” of the dajaz1 evidence was utterly and completely wrong.

But never mind. My whole point was in the second and third sentences: copyright holders can now take cases that wouldn’t succeed in a civil court, claim they’re criminal, and fob them off onto the government. All without any accountability, and all without spending a dime (since it’s all paid for by taxpayers).

Don’t think Righthaven won’t do it, either.

Anonymous Coward says:

Re: Re: Re: Righthaven is safe

The problem in Pappert was that there weren’t procedural safeguards in place. Nothing in that case stands for the proposition that a determination that something is child porn can not be made ex parte by a judge based on objective criteria. The problem in that case was the lack of such judicial determinations, it wasn’t that such determinations could not be made.

Jay says:

Re: Re: Righthaven is safe

I read that…

Terry seems to go more and more into rhetoric, trying to prove to himself exactly that copyright will be the answer to everything. He uses industry numbers, not noticing the conflict of interest inherent within them, and even tries to say that Lofgren (who’s also a lawyer) doesn’t understand the issues.

No, Terry isn’t “excellent”. He’s supporting a truly faulty position by critiquing the law quite narrowly to prop his own position. I doubt he’ll actually read the new economic analysis that came out last week that I linked on his last few posts. I doubt he’ll actually see how reasonable other people try to be.

All I can think is that he wants to believe the world is flat, while insulting anyone that says otherwise.

fogbugzd (profile) says:

One giant step (backwards) for newspapers

This lawsuit has resulted in a ruling that gives newspapers and possibly all IP rights holders weaker rights than they had before. I think the most important aspect of the ruling is that the judge actually looked at the reasons given in the U.S. Constitution for having copyright and patent protection. Existing IP law seems like it has gone far beyond the stated constitutional purposes, and if judges start interpreting IP laws in terms of the Constitution it would be a watershed event. Even if the lawsuit itself is overturned, the opinion may represent a new way of looking at IP law.

Lots of people in the newspaper industry have been cheering on Righthaven, and other IP minimalists have been celebrating the mass lawsuit tactics of the Hurt Locker variety. It is pretty clear that judges are getting annoyed by the mass lawsuit tactics and abuses inherent in the system, and it seems like their annoyance is causing them to seek out new reasons to smack them down.

In general, I think that judges with burrs under their saddles making new case law is a bad thing. However, it does happen. And apparently it is happening. I wonder if the the IP minimalists are going to be cheering as the judges stir up other reasons for striking down these lawsuits.

The Devil's Coachman (profile) says:

Re: One giant step (backwards) for newspapers

Like anyone cares what happens to newspapers. Or the RIAA, MPAA, or the legion of other litigious asshats suing everyone who ever downloaded anything in the last ten years. Screw them all, and if they went away tomorrow, they would be neither noticed not missed. Righthaven, like the rest of their bunghole contemporaries, is a bunch of blood sucking leeches looking to monetize fraudulent infringement claims. May they and all their apologists die in agony, preferably from a molten gold enema.

Sarah says:

Apparently I read it differently

For me, the message from the judge is less about whether the re-posting was fair use, and more about whether it’s any of Righthaven’s business, and if so, whether Righthaven handled the issue reasonably.

I feel like if the Review-Journal says to CIO “hey, you’re using our stuff! Take it down and/or pay us!” then you can fight over fair use. Here, Rightshaven says to CIO “hey, you’re using someone else’s stuff! Therefore you should give us money!” and to me the central issue becomes one company’s obnoxious business practices rather than fair use at all.

Anonymous Coward says:

Re: Apparently I read it differently

Sarah,if the judge was doing this, they would find themselves likely kicked off the bench. The judge is to settle the issue in front of them, not to express personal opinion and take action that isn’t part of the case.

If the defendants want to claim Righthaven doesn’t have rights, that would be something presented during the case, and would be something that would have to be judged on it’s merits, aside from the case.

If your logic is what the Judge actually did in this case, then they should consider themselves lucky to keep the job.

Anonymous Coward says:

Re: Apparently I read it differently

I don’t see how Righthaven’s decision to publish or not the articles they’ve been assigned is relevant. The fair use analysis I’ve read in other cases has stated that even if the plaintiff has publicly stated that it won’t publish the material, that doesn’t matter since they can always change their mind later.

Ken Bingham (profile) says:

Re: Re: Re:3 Apparently I read it differently

Infact the EFF has filed papers that may show these copyright assignments are a sham and that the papers really hold all the rights but allow Righthaven to merely claim they are the copyright holders and falsely register with the US copyright office as the copyright owner. The the EFF is correct their could be fraud involved.

Anonymous Coward says:

Re: Re: Re:4 Apparently I read it differently

Infact the EFF has filed papers that may show these copyright assignments are a sham and that the papers really hold all the rights but allow Righthaven to merely claim they are the copyright holders and falsely register with the US copyright office as the copyright owner. The the EFF is correct their could be fraud involved.

I suspect that whatever this “smoking gun” evidence is, it’s not as damaging as the EFF would have us believe. The truth will come out about what this evidence is soon enough. I’m quite curious myself.

Ken Bingham (profile) says:

Re: Apparently I read it differently

Sarah

You are correct. If Righthaven was a legitimate law firm representing the copyright holder then this may have very well turned out differently. Stephens Media chose to set up a shady law outfit and used legally dubious means as a way to profit from “infringements” not put an end to them. They are now reaping what they have sewn. Now every copyright holder is paying the price.

ATM (user link) says:

Righthaven goes against the spirit of the copyright law. They rely on the people’s fear of the 150000$ penalty to coerce people into settling for a few thousand. this is nothing more than a get rich scheme done by some lawyers who have too much time on their hand. If they cared so much about the content not being posted everywhere it would have been easier to just send take down notices. 90% of the time the infringement is removed. I myself have sent a few of these notices and my content was removed with a few days.

Ken (profile) says:

Righthaven's irrisponsibility proves costly

It’s good to see that a judge was following the Constitution. Copyright is designed to promote creativity not protect corporations own narrow business interests. Righthaven handicapped their own lawsuit by applying a bazaar business model. They thought not sending take-down notices would not effect their cases but as the judge pointed out not having done so severely effected their case because there was no way to prove willful infringement.

Righthaven said it is too expensive to send take-down notices before filing lawsuits but they are now finding out not doing so is far more expensive.

Let this be a lesson to all copyright holders. Send a take-down notice before proceeding with a lawsuit.

Lawsuits are risky because a negative ruling can create painful precedences. This one not only effecting Righthaven but the entire newspaper industry.

Ken says:

Newspapers Should Pull the Plug on Righthaven

One thing that Righthaven apologists are not considering is the impact this ruling will have on Righthaven’s business in general. They now have a very bad track record in the courts and have even possibly produced some very damaging precedents for the newspaper industry. Every single lawsuit that Righthaven files is now going to carry with it a tremendous risk that neither Stephens Media or News Media Group can afford to take. I doubt very strongly Righthaven is able to get another copyright of any significance. These newspapers may even pull the plug on Righthaven since this entire experiment has turned out to be a costly mistake.

Ken says:

Copyright Time Limits

I am all for companies being able to retain their copyrights and patents as long as they are being actively used but once a copyrighted work is no longer actively being used by the copyright holder it should go into the public domain after a short period of time. This would discourage these copyright and patent trolls from shelving works only to be used as tools for litigation.

Ken Bingham (profile) says:

Righthaven, the copyrighters worst enemy.

Why are some like Anonymous Coward defending Righthaven when they just screwed every copyright owner? Seems those that are big on copyrights would be cursing Righthaven not defending them. It was their irresponisble tactics that got you in this situation. If they had of been playing above board none of this would have happened.

Anonymous Coward says:

After doing some research, I stand corrected that fair use cannot be decided on a motion to dismiss. From the Ninth Circuit:

Fair use is a mixed question of law and fact, Harper & Row Publishers, 471 U.S. at 560, 105 S.Ct. 2218, but it is well established that a court can resolve the issue of fair use on a motion for summary judgment when no material facts are in dispute. See Mattel, 353 F.3d at 800 (citing Harper & Row Publishers, 471 U.S. at 560, 105 S.Ct. 2218). The posture of this case is unusual because the district court decided the fair use issue on a motion to dismiss. However, the district court’s resolution of the fair use issue at the motion to dismiss stage was proper. Leadsinger’s assertion of fair use may be considered on a motion to dismiss, which requires the court to consider all allegations to be true, in a manner substantially similar to consideration of the same issue on a motion for summary judgment, when no material facts are in dispute.

Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 530 (9th Cir. 2008).

Now, this does not mean that it is necessarily proper to decide fair use on a motion to dismiss in this case, but I was certainly wrong earlier in the thread when I categorically said it was improper to do so in all cases.

Anonymous Coward says:

Re: Re:

In my defense, such rulings are the exception, and not the rule:

Courts analyze fair use as a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). As a consequence, in order to undertake the fair use analysis, a court usually must make factual findings, or rely on undisputed or admitted material facts. See Harper & Row Publishers, Inc., 471 U.S. at 560, 105 S.Ct. 2218.45 Generally, when analyzing a Rule 12(b)(6) motion, a court’s analysis of the plaintiff’s claims is limited to its allegations in the complaint. See Arpin, 261 F.3d at 925. At this stage, a court does not make factual findings, nor deem material facts undisputed or admitted. Thus, in light of a court’s narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a 12(b)(6) motion. See Four Navy Seals v. Associated Press, 413 F.Supp.2d 1136, 1148 (S.D.Cal.2005); see also Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997).

Browne v. McCain, 612 F. Supp. 2d 1125, 1130 (C.D. Cal. 2009) (emphasis added).

Anonymous Coward says:

Righthaven is safe

Issue doesn’t matter, your response will be the same as your quote.

You demand evidence of an open mind from whoever, yet won’t respond in kind.

Yet again. Makes you easy to spot.

You are well spoken and seem to have conviction, but will concede nothing, despite demanding such from others.

It would be very interesting to see you divest yourself from what seems to be personal bias and apply your intellect to the other side of the issue, just as an exercise.

Anonymous Coward says:

Righthaven is safe

What he’s bad at is actually making an argument that is supported by the law.

And yet he publishes article after article of well-researched and fully-cited legal arguments, none of which you can adequately rebut. You, on the other hand, post a very narrow view of the universe supported only by pseudo-legal arguments. You think someone saying it’s “prior restraint of speech, and you can’t do that in America” is by itself legal analysis.

Anonymous Coward says:

Righthaven is safe

Nope. But I don’t present my articles as if it’s the one true gospel of the law. Terry does. This site is my opinion and that’s clear. Terry’s site, on the other hand, pretends that he knows the law. He doesn’t. The number of copyright lawyers I’ve heard mock his analysis seems to be growing by the week. I find it funny that he’s suckered some of you into thinking his analysis is somehow complete or accurate.

Where is their written analysis? What are their arguments?

Please stop telling us about all the lawyers that agree with you. That’s quite meaningless.

Anonymous Coward says:

Re:

So, yes, using the entire work is, quite frequently, accepted as fair use

I think the correct answer is “in limited circumstances”. Generally, it would not be considered fair use except in some fairly exceptional circumstances (as is listed in the statued). Generally, copying an entire work isn’t going to fall under fair use.

To suggest otherwise would go against the judgement in Harper&Row v Nation Enters – unless of course the use was specific in one of the narrow categories under which fair use is granted. Even then, the portion of the copied work involved can come into play (especially if the amount of the original work used is far in excess of the needs for the “fair use” )

Anonymous Coward says:

Re:

Umm, yes. Congrats. Fair Use isn’t an infringement.

However, copying the work is an infringment on it’s face. Fair use is the affirmative defense used to say “yes, we copied it, but within the limits of the law”. As fair use isn’t a hard set law, but rather a question of judgement and various tests developed over time, it isn’t a given. It isn’t something that a copyright holder can easily confirm until it s brought to court.

An affirmative defense is always a “yes I did but” defense by it’s very nature. The copryight violation which is clear by definition is negated by the affirmative defense.

What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn’t grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.

That stinks.

Karl (profile) says:

Righthaven is safe

Zoe Lofgren disagrees with you.

And here’s something the AC’s missed. Not only is she a lawyer, she’s a U.S. Senator. That means that she has a hand in creating the laws that wonks like Hart are charged with interpreting.

She was, in fact, one of those who created 17 USC 512 in the first place. You’d think her opinion on that law’s intention would carry some weight. Apparently not; find one Terry Hart, and the entire intent of the law is null and void.

Richard (profile) says:

Affirmative Defense

You misunderstand.
Fair use can be asserted as an affirmative defence (in which case the burden of proof shifts somewhat). But is not only or merely an affirmative defence. It is part of the law.

The fact that it is commonly asserted as a defence when other issues have been resolved does not somehow downgrade its status.

You are confusing the typical practice of cases (based mainly on convenience for all involved) with the law itself. However the law is clear. Fair use is an exception to copyright.

When a plaintiff establishes a prima facie case of infringement they will have already shown that the copying was not obviously fair use. The assertion of fair use as an affirmative defence only occurs when it is NOT obvious.

Anonymous Coward says:

Righthaven is safe

In all honesty, I do not believe (though perhaps I may be mistaken) asking what sites, if any, were physically located in the US. I believe my point was simply to note that that the likelihood of adversarial hearings involving foreign sites was virtually nil for any number or reasons, not the least of which is that the operators of foreign sites would hardly believe it to be a good idea to appear before a US court and thereby permit the court to exercise in personam jurisdiction over the operators.

While associated with civil litigation, perhaps it might be useful to draw an analogy between the in rem proceedings here and an ex parte TRO. In each instance a useful purpose is served, and that is to maintain the status quo for the time being.

I have asked before, and at the risk of repeating myself I ask again. The constant litany of ad hominen comments is wearing thin.

Anonymous Coward says:

Righthaven is safe

To the contrary, I have read Mr. Hart’s various articles and have been quite impressed by the depth of his research into the issues he discusses in his articles.

As for his “newness” as an attorney, the very same thing can be said of every law clerk at every level of the US judicial system. These new attorneys (clerks) wield significant power, and yet I have never seen articles dismissive of their “newness”. The truth be known, it is generally recognized within the legal profession that it is those newly graduated from law school who are the most familiar with substantive law. Mr. Hart is no exception.

For the benefit of those who may doubt my above observation, senior attorneys in law firms by and large look to newly minted attorneys to perform the research and the preparation of legal briefs precisely because of their knowledge of substantive law.

Gwiz (profile) says:

Re:

On the other hand, Steamboat Willie (which has Mickey Mouse in it) is a copyrighted work. It is also likely that it is in the public domain.

Unfortunatly, it’s not in the public domain yet.

From the Wikipedia Steamboat Willie page:

The film has been the center of some attention regarding the 1998 Copyright Term Extension Act passed in the United States. Steamboat Willie has been close to entering the public domain in the United States several times. Each time, copyright protection in the United States has been extended. It could have entered public domain in 4 different years; first in 1956, renewed to 1984, then to 2003 by the Copyright Act of 1976, and finally to the current public domain date of 2023 by the Copyright Term Extension Act (also known pejoratively as the Mickey Mouse Protection Act)[3] of 1998. The U.S. copyright on Steamboat Willie will be in effect through 2023 unless there is another change of the law.

So, maybe next decade, if we are lucky.

Ken Bingham says:

Righthaven Apologists are Anonymous Cowards

This is no game right now Brian Hill who is has an extreme for of diabetes is having more frequent attacks since he is being sued by Righthaven. He could die from this ordeal and yet Righthaven still pushes. Righthaven cannot collect a dime from him because his only income is a SSI disability check however they keep pushing him.

If Brian Hill dies or his health is severely damaged the Hill Family will end up owning Stephens Media and News Media Group.

Richard (profile) says:

Re:

However, copying the work is an infringment on it’s face.

Only when it is not obviously fair use.

What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn’t grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.
Au contraire – the rightsholder is required to consider if the use is fair before even bringing the case.

You are confused by the fact that most cases of fair use that come to trial are cases where the situation is not obvious and fair use is the criterion most likely to be unclear so many trials hang on relatively subtle factors relating to fair use.

The statute is clear – fair use is not infringemnt. It follows that when use is obviously fair (which it was in this case in the judge’s opinion – if not in yours) then the case can be thrown out at an early stage.

Anonymous Coward says:

Re:

I agree – it SHOULD work that way, but the legislature get tremendous pressure from corporations and prosecutors to make everything illegal, and then leave it up to the defendant to raise an affirmative defense. If one looks at how statutes have developed over the last 50 years, one can spot a trend. It used to be that a crime included a mens rea mental state requirement, like intent to commit the crime. However, many of those crimes have be changed so that the MERE ACT is illegal , and mental state is only an affirmative defense because prosecutors hate to have to prove intent.

Richard (profile) says:

Re:


What this judge is suggesting is that the copyright holder would have to go beyond proving the basics of the copyright violation (they own the rights, they didn’t grant rights, the item was copied / reused without permission), and move it on to trying to second guess what the fair use judgement MAY be in a court case.

That stinks.

So copyright holders actually having to pay attention to the law is somehow bad ?

Really?

What planet are you on?

Anonymous Coward says:

Righthaven is safe

At long last I am beginning to understand why “Angry Dude” made succint and clearly over the top remarks.

It is my perception that disagreement over a matter of law is simply not well received here, even when pains are taken to try and explain why the law does not necessarily support many of the comments posted here. Due Process and Free Speech tend to be viewed as immutable absolutes, even though opinions presented by the Supreme Court eschew such absolutism.

Millionaire Maker Team (user link) says:

Your Future is created by what you do to today, not tomorrow

Blogging is quite enjoyable, and moreover it has the potential to be rather rewarding. A number of sites offer easy blogging programs. Relax and permit your ideas to flow. Successful blogging tips will help you to achieve blogging excellence, and keep your readers coming back for more. The blogging tips for beginners in this article will show you how to get your blog started, or help you to make your existing blog even better.

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