Monday, June 24, 2024

Hooray For Fair Use!

If you have reason to pay attention to such things, you might have heard that Righthaven — the litigious group who is suing bloggers for having the unmitigated gall to (gasp!) quote from newspaper stories — had their suit against the Democratic Underground tossed out of court last week.  The decision stated, in pertinent part:

“The court finds that this use weighs in favor of a fair use of the copyrighted material,” Hicks wrote in his ruling, citing case law stating “copying only as much as necessary in a greater work (story) to provide relevant factual information weighs in favor of fair use.”

As to whether the online posting affected the potential market for the Review-Journal story, Hicks wrote: “Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the work (story) did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the work. Therefore, Nelson’s use supports a finding of fair use.”

Fair use is a statutorily created exception to copyright infringement.

17 U.S.C. 107. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

I mention all of this because the paper in question in the dismissed lawsuit, the Las Vegas Review-Journal, is owned by Stephens Media (who are, not coincidentally, also investors in Righthaven).  Stephens also owns, inter alia, the Northwest Arkansas Times, The Morning News, and various online news outlets.  The Democrat-Gazette became a Righthaven customer in August of this year.  The whole threat of being sued has been a source of consternation for a number of Arkansas bloggers (see, e.g., here).  The entire premise of Righthaven suing for copyright infringement is asinine, and, assuming anyone in the company is even remotely competent, Stephens Media (and, by extension, Righthaven) certainly know that their lawsuits are baseless.

Nevertheless, they continue with this plan to bully bloggers for commenting on the news, knowing full well that most bloggers have neither the time, the resources, nor the inclination to defend a lawsuit.  The defendant in the story I quoted at the beginning was smart enough to countersue Righthaven, and I assume that more and more defendants will follow that lead.

Righthaven observers were surprised that the case against Nelson would be dismissed at this early stage of the proceedings, with copyright scholar Eric Goldman saying “it is extremely unusual to win a fair use defense on a motion to dismiss.”

Goldman, a critic of Righthaven’s business plan that has been criticized as involving frivolous lawsuits and settlement shakedowns, added: “Putting aside the procedural issues, the court’s message to Righthaven was clear: the judge cut some procedural corners because Righthaven’s lawsuits — especially this case — are bogus.


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