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?

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

Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose

from the a-lesson-in-fair-use dept

Back in March, Judge James Mahan had verbally stated that he intended to rule that the non-profit Center for Intercultural Organizing (CIO) was protected by fair use, in posting a full article from the Las Vegas Review-Journal. This was impressive, in part, because CIO hadn't even raised a fair use defense itself. Instead, the judge brought it up in the first place. Now the official ruling has come out, and it's a beauty. Not only does it go through why posting an entire article can still be fair use, but it slams Righthaven for its actions, noting how it has a "chilling effect" on speech, and its actions do not advance the Copyright Act's purpose. You can read the whole thing, but the conclusion summarizes it all nicely:

The court finds that the defendant’s use of the copyrighted article in this case constitutes fair use as a matter of law. The article has been removed from its original context; it is no longer owned by a newspaper; and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits. Plaintiff's litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.

Bam. It's really great to see one judge after another condemning Righthaven, and showing that its business model strategy of using the courts to pressure people to settle isn't fooling anyone.

Separately, I did want to dig in a bit on the fact that CIO used the entire article and yet it was still deemed fair use. Some people assume that if you use the entire work, it can never be fair use. We've certainly pointed to plenty of exceptions to this claim in the past, but the judge's discussion on this particular fact is quite interesting and worth reading:

Here, the court finds that, although the defendants posted the work in its entirety, the amount used was reasonable in light of the purpose of the use, which was to educate the public about immigration issues. Because of the factual nature of the work, and to give the full flavor of the information, the defendants used the entire article rather than trying to distill it. The court finds that it would have been impracticable for defendants to cut out portions or edit the article down. See e.g, Campbell, 510 U.S. at 588–89 (noting that for a parody to be effective, it must take enough material to evoke the original).

This is really great, and hopefully similar thinking will find its way to other courts as well. "The amount used was reasonable in light of the purpose of the use." I'll have to remember that line the next time someone insists there's no fair use if you use the whole thing.

Filed Under: copyright, fair use
Companies: cio, righthaven