Righthaven Appeals The Idea That Using Entire Work Could Be Fair Use

from the and-then-cites-a-case-that-proves-it-wrong dept

Righthaven has finally gotten around to filing its official appeal in the case against the non-profit Center for Intercultural Organizing (CIO). If you don't recall, this was the case in which the judge ruled at the summary judgment stage in in favor of fair use, even though an entire article was used (the issue of Righthaven's standing concerning whether or not it actually held the copyrights in question was not raised in this case, since it was before the agreement between Stephens Media and Righthaven became public). The argument is embedded below, but Righthaven basically hits on two points:
  1. The judge erred in ruling on fair use at this point in the process.
  2. The judge's fair use analysis itself was wrong
The first argument may have some legs. It's unfortunate and stupid, but traditionally, fair use is only a "defense" that can be raised later in the process. Righthaven basically argues that this was too early in the process to determine fair use. This part of the argument could get interesting, because if the appeals court determines that the lower court was correct in its process, that could open the doors to courts dumping bogus lawsuits via a fair use claim much earlier in the process. That would certainly increase the power of fair use (if only slightly). That would be a good thing, but I'm not holding my breath.

The second argument focuses on the actual fair use analysis, and suggests that using an entire work cannot be considered fair use. It relies, almost entirely on the Worldwide Church of God case in which the appeals court ruled that a church was infringing on another church's book, by distributing the whole thing, despite it being a nonprofit. The two key issues here are whether or not the non-profit status matters, as well as whether or not it can still be fair use when the whole thing is used. The WCOG case said that the full use was not fair use and that even as a non-profit, since it was used for seeking donations, it worked against fair use.

While I have trouble with the reasoning in the WCOG case on many fronts, I'm not sure that it will help Righthaven all that much here. The distribution of the book in that case was much more closely tied to raising funds than a nonprofit posting a news article on its blog. Claiming otherwise is a stretch. As for the 100% use, Righthaven has very little argument here at all. Multiple courts have found that full item use can still be fair use... including in one of the cases Righthaven cites for its own argument, Hustler Magazine, Inc. v. Moral Majority, Inc.,. In fact, if you read that ruling, you'll see the court admitting that while it had suggested in the past that wholesale copying shouldn't be fair use, in this case it was reminded that "copying of an entire work does not preclude fair use." In other words, the very case Righthaven cites seems to argue against its own point here. But isn't that just like Righthaven?

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  1. icon
    Idobek (profile), 24 Nov 2011 @ 8:26am

    Re: Fair use only a defence

    Ah, but in a judicial law system traditions and precedents can be overturned in one ruling by a judge deciding that it no longer, or never did, make sense.

    While the world clamours for "clarifying" legislation (which will just produced question marks over something else) we should be really praying for test cases like this.

    In the end it is only a Supreme Court that can really screw up the law with a bad interpretation of legislation. Once the Supremes have ruled new legislation is required to overturn it (unless a new set of Supremes decide to revisit it). There really should be a mechanism by which lower courts can begin to treat Supreme Court rulings as simple precedents again after a certain period of time.

    In the US, of course, there is one particular Supreme Court ruling that ensures that will never be considered.

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