Chris Crum | March 22, 2011

Last month, we asked whether full article-copying could be ruled as fair use. We now know the answer. Yes, it can.

Righthaven, a company whose business model relies on copyright lawsuits for newspapers, has essentially lost its second fair use case. The first one was over a partial article sampling, but this most recent one involved the copying of a full 33-paragraph article from the the Las Vegas Review Journal (with credit) by the Center for Intercultural Organizing, a ten-person Portland, Oregon-based nonprofit organization set up to preserve immigrant and refugee rights. The case has not been dismissed yet, but he judge presiding over it says he plans to.

The article in question was directly related to the nonprofit’s cause. It was a story about immigrants and their relationship with police in Las Vegas, and given that CIO is indeed a nonprofit, and is not serving a completely different market than the Las Vegas Review Journal, U.S. District Judge James Mahan found the copying of the article to be within the bounds of fair use.

The Las Vegas Sun, which has a detailed account of the case, quotes Mahan, who also appears to have called out Righthaven itself:

“Here the copyright has been removed from its original context,” Mahan said.

“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.

He also made comments suggesting that if the Las Vegas Review Journal had sued CIO itself, it may have had a stronger case, though he didn’t imply that that they would’ve necessarily won either.

There is talk around the Blogosphere that the outcome of the case could have far-reaching ramifications within the news industry, as publishers will have to put more thought into who is using their content before sending takedown notices out.

Last month, we had a conversation about fair use on the web, with Copyright Clearance Center Vice President, General Counsel and Secretary Frederic Haber, who told us, “In the Copyright Act of 1976, Congress finally enshrined fair use in statute, but did not define it because what is fair use and what is not vary so widely with circumstances. Instead, Congress adopted and refined a test that judges had been developing over the years, directing a court to look at all the circumstances surrounding a use and make a judgment as to the appropriate way that a copyright holder’s rights and a user’s fair use privilege can best be balanced. That’s the famous ‘four factor’ test of Section 107 of the Copyright Act.”

“A fair use, then, is defined for digital content exactly as it’s defined for all other content,” he added. “It’s a use that benefits society generally but does not unreasonably interfere with a copyright holder’s right to exploit and protect its creative output (a right which is itself intended to encourage the creation of more creative output for the ultimate benefit of society). The four factor test is technology-neutral, much as copyright itself is technology-neutral, because it is intended to address the needs and rights of people (and not technologies) in as balanced a fashion as possible.”

“Righthaven appears to be using the courts to test the fair use balance by responding to some users’ use with an allegation that goes beyond that which is reasonable in the circumstances and interferes with the copyright holder’s right to benefit from its own creative output,” Haber said. “Here, the creator of content (the newspaper) is conveying its right to sue to another party – Righthaven – which appears to be more prepared to test the fair use claim (than a newspaper which would rather focus on its core business), but the issue should be the same. Copyright holders have long sought court protection against infringers, including those who allege fair use but are not in fact making fair use.”

Righthaven intends to appeal the ruling, and has already appealed the first one, but is still waiting on the final ruling for that.

Righthaven typically seeks around $150,000 in damages and the forfeiture of the defendant’s domain name. The company has filed over 250 lawsuits in the past year (including a new one, just this past Thursday). After this, maybe they’ll at least stop targeting nonprofits.

Do you think duplicating an article in its entirety without permission is OK in some cases? Comment here.

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