from the and-then-cites-a-case-that-proves-it-wrong dept
- The judge erred in ruling on fair use at this point in the process.
- The judge's fair use analysis itself was wrong
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?