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.