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 @ 8:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Affirmative Defense

    That's ridiculous. If it is fair use then it isn't an infringement. Remember using any copyrighted even with permission is fair use. Fair use simply covers all the legal ways you can use copyrighted material with or without permission. The only argument is how wide and how many ways fair use can be applied.

    Fair use has gotten little hearing in the courts because of the draconian copyright laws have scared almost everyone accused of copyright infringement, even if they are well within their fair use rights into settling because of the costs and risks of bringing it to court. Righthaven has unethically taken advantage of this fact for no other reason that making money.

    What is ironic is that Righthaven's methods so offended everyones sense of justice that people had to fight back and now there is going to be many precedents set that will more fully define it and it is not going to be to Righthaven's liking.

    No offense, but you don't seem to have any idea what you're talking about.
    Fair use is an affirmative defense and, as such, the burden of proving fair use *565 is always on the party asserting the defense, regardless of the type of relief sought by the copyright owner. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, ----, and n. 20, 114 S.Ct. 1164, 1177 and n. 20, 127 L.Ed.2d 500, 522 and n. 20 (1994) (citing Harper & Row, 471 U.S., at 561, 105 S.Ct. at 2230; H.R.Rep. No. 102-836, p. 3, n. 3 (1992)); see also American Geophysical Union v. Texaco Inc., 37 F.3d 881 (2d Cir.1994).16 Of course, as an affirmative defense, the issue of fair use is not relevant until the copyright owner has established a prima facie case of infringement. See H.R.Rep. No. 102-836 p. 3. To make out such a case, a copyright owner must demonstrate ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of the expression. See id.; see also Association of Am. Medical Colleges v. Mikaelian, 571 F.Supp. 144, 149 (E.D.Pa.1983), aff'd without opinion, 734 F.2d 3 (3d Cir.1984) (“Mikaelian ”).
    Coll. Entrance Examination Bd. v. Pataki, 889 F. Supp. 554, 564-65 (N.D.N.Y. 1995).

    That's basic stuff. You seem quite confused.

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