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
    fogbugzd (profile), 21 Mar 2011 @ 8:32am

    One giant step (backwards) for newspapers

    This lawsuit has resulted in a ruling that gives newspapers and possibly all IP rights holders weaker rights than they had before. I think the most important aspect of the ruling is that the judge actually looked at the reasons given in the U.S. Constitution for having copyright and patent protection. Existing IP law seems like it has gone far beyond the stated constitutional purposes, and if judges start interpreting IP laws in terms of the Constitution it would be a watershed event. Even if the lawsuit itself is overturned, the opinion may represent a new way of looking at IP law.

    Lots of people in the newspaper industry have been cheering on Righthaven, and other IP minimalists have been celebrating the mass lawsuit tactics of the Hurt Locker variety. It is pretty clear that judges are getting annoyed by the mass lawsuit tactics and abuses inherent in the system, and it seems like their annoyance is causing them to seek out new reasons to smack them down.

    In general, I think that judges with burrs under their saddles making new case law is a bad thing. However, it does happen. And apparently it is happening. I wonder if the the IP minimalists are going to be cheering as the judges stir up other reasons for striking down these lawsuits.

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