Yesterday a federal judge in Las Vegas held that reproducing an entire article online can fall within the “fair use” exception to copyright law. In dismissing a copyright infringement case brought by a company called Righthaven, LLC — described by Wired as a “newspaper copyright troll” — Judge Philp M. Pro made two important findings. First, he rejected the standing of a third-party to bring an infringement suit based solely on acquiring the “right to sue” from the copyright owner, and second, he found thatthere was a strong presumption of fair use when materials are reproduced online for “noncommercial” purposes.
Righthaven, owned by attorney Steven Gibson, acquires newspaper copyrights for the express purpose of suing websites that reproduce the original newspaper’s material. As Judge Pro explained, the newspaper, in this case the Las Vegas Review-Journal, “assigned” its right to sue for infringement to Righthaven, subject to the newspaper’s right to revoke the assignment or direct Righthaven not to pursue a particular case:
Stephens Media [the Journal's owner] has the unilateral right, at any time, to terminate the Copyright Assignment and enjoy a complete right of reversion. These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.
Furthermore, Righthaven had no right to “exploit” the Journal’s copyrighted material except for bringing infringement lawsuits. Accordingly, Judge Pro said Righthaven could not maintain a copyright infringement lawsuit, since it was not the legitimate owner of the material at issue.
That said, Judge Pro further explained why, even if Righthaven had standing, this particular complaint must be dismissed. The defendant, Wayne Hoehn, had posted the entire text of a Journal article, with attribution, on the website madjacksports.com, a forum for people interested in sports handicapping. Hoehn was not the website’s owner, just a user. “It is undisputed that Hoehn did not and could not profit from posting” the Journal’s article, Judge Pro noted. Hoehn said he posted the article “to foster discussion…regarding the recent budget shortfalls facing state governments.” That alone suggests fair use, Judge Pro said.
Additionally, Judge Pro considered three other factors. First, the nature of the work suggested a broad allowance for fair use:
The Work is a combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely “creative work” in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within “the core of intended copyright protection.”
Second, Judge Pro looked at the fact Hoehn reproduced the entire work rather than just part of it. The judge concluded, “[W]hile wholesale copying of the Work shifts this factor against finding fair use, wholesale copying does not preclude a finding of fair use.”
Finally, Judge Pro examined Righthaven’s argument that Hoehn’s posting the article online somehow “damaged” the commercial market for the Journal’s original article:
Righthaven argues that the market for the Work was impacted negatively because potential readers are able to read the Work on the Website and would have no reason to view the Work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011. Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm.
This last point may prove to be the most helpful in combatting future copyright trolling cases. The copyright lobby expends a great deal of energy maintaining, without evidence, that copying “diminishes” the market for a given work. In most cases just the opposite is true. The free movement of information allows for the near-limitless expansion of interest in a particular work or author. This is not a zero-sum game. And it’s good that some judges recognize as much.
{ 10 comments }
Didn’t Stephen King once try writing a serial novel online, but gave it up when it was copied without him getting any royalties? I think that authors would say that current copyright is necessary.
Didn’t Radiohead once try making an album and put it online, and you could pay whatever you wanted for it and made a ton of money?
Yes they did
http://en.wikipedia.org/wiki/In_Rainbows
Then they made a DVD
http://www.kat.ph/radiohead-2010-01-24-the-music-box-the-fonda-los-angeles-ca-us-2x-multicam-dvd-ntsc-t4888978.html
Maybe lots of people (how many? we don’t know) downloaded it but didn’t pay anything because they didn’t like it, and didn’t want to fork out money for it.
Who knows if Stephen King would have got any MORE money if he’d sold the book the regular way?
Didn’t science-fiction writer Neil Gaiman admit that when his books were posted online, made available in their entirety, for free, he saw his sales increase by at least 300%?
Yes. Yes he did.
http://www.nin.com/
Stephen King should listen to Nine Inch Nails.
You misunderstand the ruling. The judge did not bar third party assignees from suing on copyright claims. What he said was that as a matter of statutory law, a copyright holder may not attempt to assign a bare eight to sue. Since the agreement between the newspaper publisher and Righthaven gave Righthaven a purported bare right to sue, with nothing else, it was not effective as an assignment and Righthaven lacked standing.
Mr. Olivia:
I was with you right up to here:
The object of the lobbyist’s efforts is favorable legislation. In the context of legal proceedings, there are plaintiffs, defendants, and witnesses. The ruling on harm merely states that a general claim of harm is not sufficient to show legal harm. The concept is “actual harm”, not speculative harm. Unfortunately, the legislative threshold is not quite so high.
On the standing issue, my opinion is that the intended trolling could have been accomplished by simply substituting a contingency agreement for the assignment. In such an arrangement, the copyright holder would be the plaintiff and would have standing. The lawyer could continue to exploit his business plan (trolling) without being tossed out for lack of standing.
That leaves us with the Fair Use doctrine and the proper subject matter of copyrights.
First, despite the “ideas are free” line of argument often recited here, which claims that there is no non-arbitrary way to distinguish between what is protectable under copyrights and what is not, (that is all “works” are merely ideas) this ruling turns on such a distinction.
Here the judge ruled that there is very little about this article that is protectable in the first place, since ideas and factual content are not, in themselves, protectable under the statute. Second, he found that even if there is protectable work involved, some creative, original expression, the use was within Fair Use, and the copyright holder is therefore there would be no infringement anyway.
Despite the troll’s supposed intent to have armed guards kidnap the offender in the middle of the night by enlisting the monopoly on aggressive coercion held by his State authorities, the copyright laws themselves, given a fair reading by the judge, defended the distinction of “protected works” and Fair Use provided under the statute. Once again, liberty prevails!
This seems like a strong argument for, not against copyrights. The system, at least in this case, seems to be working rather well.
Getting one judge to say that they had to show actual harm, instead of automatically assuming harm, is great! Unfortunately, this was just one judge, and as Joe above emphasizes, the actual ruling was simply that RightHaven didn’t have the right to sue over this, leaving the judge’s comments on harm as being without much legal force.It might be considered a victory of sorts, but I wouldn’t get too excited unless other judges agree with this judge.
@Michael A. Clem June 22, 2011 at 3:50 pm
Allow me to rephrase my central point. This judge seems to be applying copyright laws as they are written. So I wouldn’t get too excited about the “breakthrough” victory here. In this particular case, at least, all systems appear to be functioning normally.
Therfore, to raise the alarms or high-five each other that copyrights MAY have been weakened here, that is wrong. The safeguards against violationg the premise, “ideas are free” has been simply preserved. Ideas are still free, within the meaning of the copyrights statutes.
My thanks to Mr. Oliva, however unintentional it may have been, for illustrating how it actually works.
Lo and behold, booboo lost another one today. What’s a greedy IP jerk to do?
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