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. icon
    Mike Masnick (profile), 21 Mar 2011 @ 3:52pm

    Re: Re: Re: Re: Righthaven is safe

    And yet when it comes to having a legal debate, you can't touch him.

    Your opinion of course. Which is worth... pretty much nothing.

    You're being silly, and you're not making any sense. You're trying to bring confusion where there is none. My position has always been that not only can they seize the domain name, they can also seize the servers. They can kick in doors and take the alleged infringer's computers. They can put people in handcuffs and book them. All of this can happen upon demonstrating probable cause to a judge and having them sign off on a warrant. You have never presented any evidence to the contrary. Nor can you. It's hilarious that you ignore the entire history of ex parte seizures in criminal and civil copyright cases

    I do not ignore any such history. I have read the cases, and explained why this situation is different, and you instead ignore the many, many cases that disagree with your position. I don't know why.

    But, realistically, if you take a common sense look at the situation, I can't see how anyone who has any intellectual honesty can support such seizures. Why is such a seizure needed prior to an adversarial hearing? You never have answered that. Instead, you try to find some twisted interpretation of cases that don't apply (Arcara, again?) and then insist that it's fine if all speech is stifled in situations that any thinking person knows is prior restraint without due process.

    You and Terry have the same problem: you're loophole lovers over common sense lovers.

    You've made the claim, but can you back it up? Terry backs up all of his arguments. You should try that sometime.

    I'm sorry, but I've backed up my arguments in great detail. That you choose to ignore them is not the same thing. Terry's "backups" involve selectively quoting out of context, focusing on loopholes, and ignoring the vast caselaw that disagrees with his position.

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