Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose
from the a-lesson-in-fair-use dept
Back in March, Judge James Mahan had verbally stated that he intended to rule that the non-profit Center for Intercultural Organizing (CIO) was protected by fair use, in posting a full article from the Las Vegas Review-Journal. This was impressive, in part, because CIO hadn’t even raised a fair use defense itself. Instead, the judge brought it up in the first place. Now the official ruling has come out, and it’s a beauty. Not only does it go through why posting an entire article can still be fair use, but it slams Righthaven for its actions, noting how it has a “chilling effect” on speech, and its actions do not advance the Copyright Act’s purpose. You can read the whole thing, but the conclusion summarizes it all nicely:
The court finds that the defendant?s use of the copyrighted article in this case constitutes fair use as a matter of law. The article has been removed from its original context; it is no longer owned by a newspaper; and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits. Plaintiff’s litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act?s purpose of promoting artistic creation.
Bam. It’s really great to see one judge after another condemning Righthaven, and showing that its business model strategy of using the courts to pressure people to settle isn’t fooling anyone.
Separately, I did want to dig in a bit on the fact that CIO used the entire article and yet it was still deemed fair use. Some people assume that if you use the entire work, it can never be fair use. We’ve certainly pointed to plenty of exceptions to this claim in the past, but the judge’s discussion on this particular fact is quite interesting and worth reading:
Here, the court finds that, although the defendants posted the work in its entirety, the amount used was reasonable in light of the purpose of the use, which was to educate the public about immigration issues. Because of the factual nature of the work, and to give the full flavor of the information, the defendants used the entire article rather than trying to distill it. The court finds that it would have been impracticable for defendants to cut out portions or edit the article down. See e.g, Campbell, 510 U.S. at 588?89 (noting that for a parody to be effective, it must take enough material to evoke the original).
This is really great, and hopefully similar thinking will find its way to other courts as well. “The amount used was reasonable in light of the purpose of the use.” I’ll have to remember that line the next time someone insists there’s no fair use if you use the whole thing.