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

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

Wed, Nov 23rd 2011 2:14pm — Mike Masnick

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:

The judge erred in ruling on fair use at this point in the process.
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?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: appeals, fair use, nonprofit, summary judgment
Companies: cio, righthaven

21 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 23 Nov 2011 @ 3:01pm

The good thing here is that we'll get a Ninth Circuit panel de novo review of whether this was fair use. I fully expect that Righthaven will win on this point despite Mangano's unimpressive advocacy skills.
[ link to this | view in thread ]
tebee (profile), 23 Nov 2011 @ 3:17pm

But where is the money coming from ?
But seeing as how Righthaven has been pleading poverty in other cases when fees have been awarded against it, where is it finding the funds for the appeal?

Also even if it does win on the fair use argument won't it still fail on the lack of standing now it's arrangements with the true copyright owner are out in the open.
[ link to this | view in thread ]
ken (profile), 23 Nov 2011 @ 3:18pm

Where is Righthaven getting the money to file these appeals? They owe $230,000 in legal fees and sanctions and are claiming poverty in not coming up with the money or posting a bond.
[ link to this | view in thread ]
ken (profile), 23 Nov 2011 @ 3:22pm

I am sure this will pique the interest of the Randazza Group who is looking into Righthavens funds will be looking into where Righthaven is coming up with money that should be going towards satisfying judgments.
[ link to this | view in thread ]
OC, 23 Nov 2011 @ 3:38pm

Whenever I read about Righthaven I can't shake the feeling that it's all just an elaborate plan, backed by deep pockets, to see how far they can push the courts. No interest in actually winning anything, just push the limits to extreme silliness to see what happens.
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2011 @ 3:49pm

Re: But where is the money coming from ?
Also even if it does win on the fair use argument won't it still fail on the lack of standing now it's arrangements with the true copyright owner are out in the open.

That's a good point. The fair use issue could be mooted if the appellate panel finds there's no subject matter jurisdiction to begin with.
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2011 @ 3:53pm

This is no longer about fair use or copyrights, it has turned into. Wronghaven vs. the law, They heve done there best to dissolution. To me it is simple, they need jail time, The childish defences they use are just ridiculous.
It's a simple playground defence. Next they will claim the dog ate their depositions. This shows how bad the judiciary
system is. Why are there no sanctions yet to stop these criminals.
[ link to this | view in thread ]
Atkray (profile), 23 Nov 2011 @ 4:14pm

Re: Where is the money coming from?
I should think it was obvious,

They have to appeal and win this case so they will have money to pay on the cases they have had thrown out.
[ link to this | view in thread ]
Mike Masnick (profile), 23 Nov 2011 @ 4:20pm

Re: Re: But where is the money coming from ?
That's a good point. The fair use issue could be mooted if the appellate panel finds there's no subject matter jurisdiction to begin with.

Will the panel take up that issue, though, since it wasn't part of the district court process in this particular case?
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2011 @ 4:23pm

Like SCO, Righthaven will drag along until the death of my grand kids. Which is a very sad commentary of our judicial system.
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2011 @ 4:38pm

But we do not even get there. Jurisdiction can be raised at any point in a proceeding, at least in criminal cases. The appeals court, on its own, could decide that the lower court has to revisit the case to see whether it even had jurisdiction. If not, it could not come to the fair use argument, and all other issues are pure dicta or at worst, moot.
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2011 @ 4:48pm

Re: Re: Re: But where is the money coming from ?
Will the panel take up that issue, though, since it wasn't part of the district court process in this particular case?

My understanding is that subject matter jurisdiction (standing in this case) is never waivable or moot (it's a constitutional condition that must exist) and can be brought up sua sponte, even by the appellate court (and even if it wasn't raised in the district court). That's what they taught me in Civil Procedure anyway. If that's right, I'm sure CIO will raise the standing issue in their reply brief.
[ link to this | view in thread ]
Rich Fiscus (profile), 23 Nov 2011 @ 5:40pm

The Supreme Court disagrees with that assessment
I have to go with the Supreme Court on this one. Per the Betamax case, all non-commercial, non-profit copying is assumed to be fair use unless the copyright holder can show convincing evidence of past or future harm.

This is not, however, the end of the inquiry because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would [464 U.S. 417, 451] merely inhibit access to ideas without any countervailing benefit.

Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

Notice there is nothing mentioned about "except when the full work is copied."
[ link to this | view in thread ]
ken (profile), 23 Nov 2011 @ 7:17pm

The courts could go either way but I think where they may side is that copying news stories is different than copying creative works. News stories are fact based which cannot be copyrighted. The constitution gives us freedom of the press not for the sole economic benefit of newspapers and the media but because a free press and the free flow of information is vital for a democracy and a free people.
[ link to this | view in thread ]
Kevin H (profile), 23 Nov 2011 @ 8:23pm

Re: Re: Where is the money coming from?
Its like watching a deer that has been struct by a car flail helplessly in the street to escape. Only to cause itself further pain and anguish before it inevitably dies.
[ link to this | view in thread ]
Richard (profile), 24 Nov 2011 @ 2:15am

Fair use only a defence
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.

Yes it is more than stupid it is a misinterpretation that has become established by habit.

There is no such thing as "only a defence". An act is either legal ot illegal.
[ link to this | view in thread ]
Richard (profile), 24 Nov 2011 @ 2:16am

Re: Fair use only a defence
What has happened is that people have confused a defence with a mitigating circumstance.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
Idobek (profile), 24 Nov 2011 @ 8:37am

Re: Re: Fair use only a defence
I meant common law, of course. Judicial law is basically what I was complaining about with regards to Supreme Courts.
[ link to this | view in thread ]
Anonymous Coward, 24 Nov 2011 @ 6:03pm

I agree with another poster that Righthaven is a front to push the legal system to see how far it will go. But I love a deep conspiracy theory. So saying it is a big business front is not enough.

The whole Righthaven thing is being run by a foreign government. With the sole intent of creating sufficient case law to protect their own commercial interests against US companies seeking redress though the courts.

Either that or the Righthaven guys are just bonkers.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]