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.

Filed Under: copyright, fair use, full articles
Companies: center for intercultural organizing, las vegas review journal, righthaven, stephens media


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  1. identicon
    Jose_X, 21 Mar 2011 @ 11:46am

    Re: Re: Re: Re: Re: Re: 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

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