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 @ 10:39pm

    Re: Re: Re: Re: Re: Re: Righthaven is safe

    If I may ask, were any of the seized domain names associated with businesses physically located within the US, and if so which ones?

    You asked this last week, and I answered last week. Why are you still doing so?

    Dajaz1 and OnSmash are both based in the US. Channelsurfing is based in the US. Those are the ones I'm familiar with.

    Even so I'm not sure why that matters. We had this discussion last week where you seemed to think that made a difference. It does not. It's still possible to have a hearing, and if the domain holders don't show up, to have a default judgment.

    All of that *can* be done prior to seizure. But it was not. You have not explained why. You've only said that seizing prior to a hearing is the "only" remedy because the domains are outside the US, even though we've already pointed out that this is not true for many.

    I'm not sure why you would pretend again, that this is the case, even though we already had this discussion.

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