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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
    Anonymous Coward, 21 Mar 2011 @ 11:47am

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

    Any business left to inheritors can be maintained, sold, or driven into the ground by those inheritors. It can go bankrupt, into receivership, take or inflict damage. It can become a burden to inheritors who were unaware of problems going on prior to the owner's death - they might inherit ongoing lawsuits or imminent demise through unpaid debt, an exodus of employees, outstanding violations of state or federal law, a failing or soon to be obsolete business model, a rapidly vanishing market, etc.

    Certainly not all but many times I see this rather idealized vision of leaving a 'legacy for our children' regarding inheritance of assets or business or copyrights or what have you. And I'm not saying that this is not a noble goal or that copyrights should go into the public domain upon the death of the author (though that would not prevent survivors from using the material for gain in any way). There are consequences that many not have been realistically considered, is what I'm saying.

    One might feel contented that their survivors will be taken care of via copyrights, and that's all well and good. But inheritors may dump those rights into the laps of any corp. that offers a one time sum, a corp. that will profit from your work far more and for far longer than you had hoped your survivors would. Or they could hang onto them and become the sue-monsters that prey on people who would honor your work with recognition long after you're gone...

    I guess it doesn't matter if you're dead and beyond caring, but if you care when you're alive, it could bear more thinking, perhaps.

    This 'legacy' issue brings up stuff for me, recently lost my dad, who thought he had squared up all his affairs so things wouldn't be difficult for us when he passed.

    He was mistaken. He would've been horrified to know the extent of the travails we've gone through to settle his very small, property-less estate. It would've broken his heart.

    Do your survivors and yourself a huge favor and take the fantasy out of legacy-leaving.

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