by Mike Masnick

Filed Under:
copyright, fair use, jason schultz


Law Professor Explains How Even When A Site Copies An Entire Article, It May Still Be Fair Use

from the a-lesson-in-fair-use dept

Berkeley law professor Jason Schultz has filed an excellent amicus brief in one of the many Righthaven lawsuits, pointing out that using an entire article does not preclude fair use (pdf), and then going on to explain why the use of an entire article in this particular case (which Righthaven brought against the Center for Intercultural Organizing) was almost certainly fair use. Basically, Righthaven has taken the approach that if an entire article is being used, then there can be no fair use. However, as Schultz points out, that's not at all what copyright law says:
A fair-use inquiry balances four statutory factors.... Righthaven, however, asks this Court to ignore those traditional factors and embrace an inflexible, one-factor test that prohibits a fair-use finding whenever an entire copyrighted work is used. That approach finds no support in the text and purposes of the Copyright Act and the cases interpreting it. Indeed, the Supreme Court, the Ninth Circuit, and this Court have all found the use of entire copyrighted works to be consistent with the fair-use doctrine. Those rulings recognize that copyright law balances two important public interests: promoting creative expression and encouraging the use of copyrighted works for socially beneficial purposes.
It is a common misconception that using an entire work means there's no fair use defense. We've repeatedly pointed out cases where courts have found fair use, even if an "entire" work was being used. But, still, we get commenters all the time who argue that there's no such thing as fair use if you use an entire work. Schultz, in his brief, highlights many more examples, including the explanations of why each case was still deemed as fair use. From there, he goes on and runs through the four factors in this particular case, and explains why it should be considered fair use as well. It will be interesting to see how the judge rules, because that could impact many other Righthaven cases as well.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Pierre Wolff (profile), Dec 20th, 2010 @ 11:22pm

    That was a kick-ass amicus brief. In the footnotes he even manages to make one of Righthaven's arguments against Reality One backfire on them. That brief read like a 'feel-good' movie :) Now to hope it convinces the judge.

    reply to this | link to this | view in thread ]

  2. icon
    The eejit (profile), Dec 21st, 2010 @ 1:45am


    Depedent on nhow many tax dollars are in Righthaven, sure. :)

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Dec 21st, 2010 @ 3:40am

    MORE i say


    reply to this | link to this | view in thread ]

  4. identicon
    Eric E. Johnson, Dec 21st, 2010 @ 4:48am

    Fair use to repost articles written about you

    Aside from the points mentioned in support of this Righthaven defendant, there is another theory of fair use for reposting whole articles, that, in my judgment, arises when those articles are about the person reposting them. Blog Law Blog: Fair Use and Reposting Articles About You:

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Dec 21st, 2010 @ 5:42am

    Sadly, fair use is an affirmative defense, which means that first you have to admit to violating copyright, and they try to explain your way out of it. It is an interesting brief, but it is unlikely to sway many judges to go beyond existing rulings in the area.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Dec 21st, 2010 @ 6:00am

    I'm so confused!!

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Dec 21st, 2010 @ 6:01am


    'Existing rulings in the area' are part of the brief, which apparently you didn't even bother reading the /excerpt/ from.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Dec 21st, 2010 @ 6:31am

    Re: Re:

    Yes, they are part of the brief. The point is there is little reason for the courts to exceed other rulings out there. It is also unlikely for them to use exception rulings as a basic for overall rulings.

    I /understand/ that.

    reply to this | link to this | view in thread ]

  9. icon
    Bruce Ediger (profile), Dec 21st, 2010 @ 7:01am


    Chin up, little one! You shouldn't feel confused!

    The point is that infringement (not theft!) is only decidable by a trial!

    Therefore, you can't have some automatic system, be it youtube's Magic or Google's JooJoo, or Microsoft's hexing, decide wherther a particular file full of data infringes or not.

    reply to this | link to this | view in thread ]

  10. icon
    Hephaestus (profile), Dec 21st, 2010 @ 7:08am


    "I'm so confused!!"

    If you really want I can explain it to you but like the explaination of how "torrent could equal infringement, which if I am remembering correctly, is civil not criminal." you will be far more confused ...

    reply to this | link to this | view in thread ]

  11. identicon
    Another AC, Dec 21st, 2010 @ 7:27am

    Re: Re: Re:

    I am not a lawyer, nor would I ever want to be. However, in reading the entire brief, Mr. Schultz is not asking the court to exceed other rulings. He is asking the court to find that based on those other rulings, this case has considerable similarity in its scope. He is also stating that Righthaven is nothing more than a corporate front for litigation. They have no interest in marketing the works they have acquired rights for and their only business model is to litigate using the acquired copyrights. In short he is calling a Troll a Troll. I have sincere hopes that the courts toss this whole proceeding and any other cases that Righthaven has open.

    reply to this | link to this | view in thread ]

  12. icon
    Allan Masri (profile), Dec 21st, 2010 @ 8:12am

    As others have commented, fair use is worthless as an excuse for using copyrighted materials, since you have to go to trial to take advantage of it. Lawyers are expensive, so most people faced with a copyright infringement suit simply acceded to the copyright holder's requests.

    This case is interesting because the courts have started recognizing the problems represented by trolls. They have stopped issuing routine injunctions before the case is argued. This has been a major weapon for trolls. Perhaps this case will result in further anti-troll measures.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Dec 21st, 2010 @ 8:26am

    Re: Fair use to repost articles written about you

    College students photocopy entire articles from college libraries when doing research. I think its a given that the there is more to consider than just the amount of a work being copied.

    reply to this | link to this | view in thread ]

  14. icon
    Hugh Mann (profile), Dec 21st, 2010 @ 9:39am

    Another common misperception about fair use . . .

    Yes, many people seem to think that copying the entire work automatically precludes fair use. As you point out, this is not the case.

    Another common misperception is that merely because the copying was "non-commercial" it is automatically fair use. This is also incorrect.

    The fair use test uses four factors, and the courts have consistently found that all of them must be considered, and no single one of them is ever dispositive.


    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Dec 21st, 2010 @ 10:49am


    I disagree. Procedurally, one should not have to admit to a violation of copyright laws, but instead can choose to argue that, primarily, no violation occurred because of other factors, and then argue that, alternatively, if a violation is found, there is still no liability because the act in question is protected fair use.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, Dec 21st, 2010 @ 10:53am


    Isn't the fact that it is an affirmative defense still a good thing? A genuine issue of material fact should preclude summary judgment here. The resulting trial seems like the exact kind of expense the plaintiff law firm would wish to avoid here.

    reply to this | link to this | view in thread ]

  17. identicon
    bob, Dec 21st, 2010 @ 11:32am

    Typical looniness from the university

    Only someone at a University could come up with an argument like this. The academy likes to pretend that they're not a business and they're all in it for the common good-- and please don't pay any attention to that bursar behind the curtain with the huge bill.

    Okay, sure, let's assume that sometime maybe a complete reproduction may be fair use. Let's look at the other three parts of the test:

    * Does it diminish the value of the original in the marketplace? While we can't measure this, only a fool would argue, "Don't worry. The same number of readers will click through even though we're reproducing everything." And if it appears in search engines, you can be sure that it's diverting people.

    * The difference between a not-for-profit and a commercial venture can be pretty slim. While I can't be certain about the defendant, I do know that there are 3843 people making more than $200k at the University of California. Who hoo! But don't worry, they're a "non-profit" so they get a super-pirate card to do what they want.

    * The nature of the copyrighted work is pretty clear. It was put on the web to earn money from advertising. It wasn't a kid's doodle in the margin of a notebook-- a perfectly good example of something that's technically copyrighted but not meant for the marketplace.

    So go on loony law professor. Pretend that others don't need to make a living. Stretch fair use to the point of breaking. That's one good way to ensure that there will be push back from those who can't make a living by sticking their students with fat loans. The more you deny "fair use" in the obvious cases, the more that the content creators will need to push back with tougher legislation.

    So give it a break. Not all use is fair use, no matter how much you want to dream and dream and dream.


    reply to this | link to this | view in thread ]

  18. icon
    Modplan (profile), Dec 21st, 2010 @ 9:15pm

    Re: Typical looniness from the university

    I wish I was as good at making up straw men as you are, then I could win every argument regardless of what has actually been said.

    reply to this | link to this | view in thread ]

  19. identicon
    tisppublicitario, Dec 23rd, 2010 @ 5:32am


    muchas gracias por la ayuda

    reply to this | link to this | view in thread ]

  20. identicon
    The Vandals, Dec 27th, 2010 @ 10:20pm

    Transformative Works

    Although I'm not completely sold on the argument that CIO's use is transformative, I love the brief because it really opens up the arguments for a full debate. I usually think of transformative as meaning there is an actual physical transformation, as in taking a picture of Mickey Mouse and transforming it from a cartoon into a social comment.

    Our case, The Daily Variety Vs. The Vandals, looks like a joke when run though Schultz' analysis. We are presently waiting for a judge in Delaware to decide if it should be heard out there or here in California where all the parties and the lawyers are located. If you are unfamiliar with our case, we were sued for releasing an album that included a parody of the Daily Variety's "special font."

    We discontinued the product as part of a settlement that we were railroaded into by the usual threats of burdensome litigation that trolls spew out. Then The Daily Variety abused the settlement agreement by ignoring its terms and suing us 6 years later because they said they "saw the image again on the Internet." So they are trying to frame it as a contract case, but it is really about Fair Use and abusing the legal process.

    Now the Daily Variety has submitted a motion to the court to demand that we not be allowed to represent ourselves and that we be forced to hire expensive Delaware attorneys because it's not fair that we are not spending as much money as they told us we would have to spend if we didn't just give them $75,000 when they demanded it earlier this year. All this from a trade publication for the "arts."

    reply to this | link to this | view in thread ]

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