As reported in Arstechnica, “Copyright troll Righthaven achieves spectacular “fair use” loss“:
Righthaven has achieved national notoriety for its business model, which involves scouring the Web—including tiny blogs and nonprofits—for Las Vegas Review Journal and other newspaper stories. When it finds a match, Righthaven licenses the copyright from the cooperating newspaper and sues the article poster without warning for statutory damages of up to $150,000. In addition, it routinely demands that the poster’s domain name be transferred to Righthaven.
The company’s most controversial cases have involved posters who only used a small percentage of the original article, or instances where Righthaven sued the very sources who had provided the basic information for an article, then posted the result to their own website.
In the current case, Righthaven sued “the Oregon-based Center for Intercultural Organizing (CIO), … after the group posted a Review-Journal newspaper article on the deportation of illegal immigrants on its own website.” CIO had posted the complete text of the article instead of just a snipped. Usually it’s hard to argue this is fair use. (To show fair use, the court has to consider and balance “four factors“.) But:
At a hearing last week, the judge decided that CIO’s use of the full article text was, in fact, a fair use under the “four-factor test” enshrined in law.
… Judge Mahan told both sides that the purpose of copyright law was to encourage creativity and to disseminate public access to information, so long as that did not unfairly hinder the market for the original story. In this case, Mahan said that the tiny Oregon nonprofit had essentially zero overlap between the readers of its website and the readers of the Review-Journal. In addition, the effect on the “market” for the work is unclear, since Righthaven is solely using the copyright to prosecute a lawsuit, not to defend its news operations (it has none).
The reposted article also fit within CIO’s nonprofit educational mission, and the judge said that it was largely informational in nature, rather than creative.
This is a good result, of course. But one ruling by one court in a particular case based on particular facts does not establish any kind of clear right to copy newspaper articles nor does it clarify the ambiguous copyright statute. It won’t stop Righthaven from trolling. This is just a predictable result of the copyright statute itself, which survived the judge’s ruling unscathed.
[H/t Wendy McElroy]