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.

Filed Under: copyright, fair use, jason schultz
Companies: righthaven

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  1. identicon
    bob, 21 Dec 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.


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