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. identicon
    Anonymous, 27 Nov 2011 @ 3:07pm

    No Conspiracy. Not bonkers. Just greedy.

    Not bonkers - just greedy.

    The scheme didn't come from nowhere, it was inspired by the Bittorrent copyright trolling scams hatched by ACS:Law, a UK company backed by a German company. So the business model was *copied* (natch), although the medium is different (news copy instead of movies). If there's anything Americans love it's get-rich-quick schemes, and I don't have too much trouble believing Righthaven told themselves and their clients that everyone was going to make lots of easy money.

    Now these guys have gone rogue and may end up ruining some things for the "real" rightful defenders of copyright. It's a free country - nobody is entitled to be the only group that gets to file certain types of lawsuits to try to influence case law to their benefit. What makes Rightaven special is that until recently it was only big, big players that were trying to use and influence copyright law in a major way. Whatever you think of the RIAA and MPAA's tactics, one thing I will give them credit for is they seem to be genuinely motivated by a desire to eliminate piracy. They may have sued lots of people for a lot of money, they may have settled a lot of cases, they may seem woefully unprepared for technological advancement, etc. But I don't believe their goal was ever to profit from litigation per se, it was an attempt to make piracy so unattractive that people would buy stuff instead.

    Now guys like Righthaven, CEG, MCGIP, Steele | Hansmeier are here and they are in it for the money. They don't care about eliminating piracy, in fact from their POV they want piracy to grow if they can skim profit off of piracy. They are not the rightsholders or content creators and they clearly do not care about image and public perception. They are not even IP attorneys, most come from personal-injury or family law backgrounds. We have seen with Righthaven's destruction and sanctions against the likes of Evan Stone, that they don't have a whole lot of respect for the law. So their abusive tactics may end up pushing the pendulum of public and judicial sympathy firmly in the direction of defendants and their audacious behavior and lack of respect for the law will result in them provoking rulings that the "real" copyright police may not like at all.

    All too funny, if you ask me. I wonder when the big guys are going to decide they've had enough of these upstart punks messing everything up. The RIAA's chief litigator commenting on this fair use ruling is the first sign that the big guys have noticed.

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