Righthaven To Explain Why Reposting Isn't Fair Use 169
Ponca City, We love you writes "TechDirt reports that a judge has asked Righthaven to explain why a non-profit organization reposting an entire article isn't fair use. The case involves the Center for Intercultural Organizing of Portland, Oregon, which was sued by Righthaven in August after an entire 33-paragraph Review-Journal story about Las Vegas immigrants was posted on the center's website, crediting the Review-Journal. The nonprofit says it was founded by Portland-area immigrants and refugees to combat widespread anti-Muslim sentiment after 9/11 and it works to strengthen immigrant and refugee communities through education, civic engagement, organizing and mobilization and does not charge subscription fees or derive any income from its website. The interesting thing is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up, suggesting that the Nevada judges are being inundated with hundreds of Righthaven cases, and that Righthaven has already lost once in a case that was found to be fair use so judges may want to set a precedent to clear their dockets."
My view. (Score:4, Informative)
Let's look:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The center isn't for-profit, so they're likely ok here.
the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
Also hard to claim fair use when it's the entire 33 paragraphs.
the effect of the use upon the potential market for or value of the copyrighted work.
Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).
WTF is Righthaven (Score:5, Informative)
Righthaven LLC [is] the Las Vegas “technology company” that has been filing copyright infringement lawsuits in ... Nevada against numerous unsuspecting website owners (almost always without notice) for copyright infringement of news articles originally published in the Las Vegas Review Journal.
Via http://www.righthavenlawsuits.com/ [righthavenlawsuits.com].
This is black letter law (Score:1, Informative)
I know this is slashdot and any attempt to enforce copyright law must be evil and wrong, but this isn't even a hard case, its more or less black letter law.
Fair use lets you, among other things, take representative excerpts of a larger work for scholarly or editorial purposes. Basically you're allowed to quote stuff in order to talk about it in a rational manner.
There's no standard under which you're allowed to copy an entire work and call it fair use.
Whether or not you make money as a result of your copying has no bearing on its legality, its only a function of damages. In other words, being a non profit doesn't mean that copyright law doesn't apply to you.
Re:My view. (Score:4, Informative)
Re:My view. [4th test] (Score:3, Informative)
There are four tests for fair use. The fourth one is "Is the use transformative in any way?" For example, a parody is usually seen as fair use, because it transforms the original.
Re:"Because we say so" (Score:5, Informative)
While usually you'd be right, there are instances where reposting an entire article is considered fair use. For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.
Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.
Re:"Because we say so" (Score:3, Informative)
I think you've got the law right, but I don't think that'll help prove fair use here.
Taking an article that is used to generate advertising revenue and reposting it somewhere that the author will not receive any revenue from goes firmly against the "commercial value of the original work" prong of the fair use defense.
Consider the equivalent: let's say I run a "non-profit" website, hypothetically just a blog where I generate no income, and I repeatedly copy articles from behind the NY Times paywall onto my site. That's copyright infringement and is substantially depriving the NY Times of their income for the articles. I believe I would lose a fair use defense there. I think the situation is the same if I copied NY Times articles that were not behind the paywall because they would be able to show that they were losing ad revenue.
Re:"Because we say so" (Score:3, Informative)
That's what the *AA type lobbyists want you to believe, but if you look at the copyright law, it includes Fair Use and says that Fair Use is a limitation on the scope of the copyright monopoly. I.e., a Fair Use is by definition not infringing.
Now you may find yourself on the receiving end of a copyright suit before a court clarifies what Fair Use means, but it is part of the law, same as the artificial monopoly that it limits.
Re:"Because we say so" (Score:5, Informative)
if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.
No, it's not. At all. See http://www.copyright.gov/fls/fl102.html. [copyright.gov] Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.
Re:So why not just provide a link? (Score:3, Informative)
Re:My view. (Score:3, Informative)
Re:"Because we say so" (Score:3, Informative)
For some "non-profits", that could be a considerable sum [charitynavigator.org].
Re:WTF is Righthaven (Score:3, Informative)
But if they did that they wouldn't be able to exploit the baseless settlement gravy train.
Re:Huh???? (Score:3, Informative)
Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html [copyright.gov]
Re:"Because we say so" (Score:3, Informative)
Re:Quoting for the purpose of refuting (Score:3, Informative)
Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.
Actually, the evidence available suggests that exactly that is the case. The woman who wrote "Kookabura" was still alive (and still held copyright)when the Men at Work song came out. Before she died she gave the copyright to a nonprofit organization (I don't remember the name of te organization--something like the Australian National Library). That organization sold the rights to the song as part of a fund raiser.
Re:"Because we say so" (Score:2, Informative)
From my understanding, since it looks bad for the newspaper to be suing everyone for copying 3 lines from an article, they 'sell' the articles to Righthaven, in exchange for a license to use the article. This transfers the ownership of the copyright from the newspaper to Righthaven. Righthaven then sues any alleged infringers based on those copyrights. Since, however, they do not publish the work, and do not retain the ad revenue from said work, once the article is "Sold" to them, and they offer the license, their opportunity for revenue ceases to exist. They are not a publishing company, do not resell articles, and seem to exist only to sue people on behalf of the LVRJ (and a few others).
In this case, it isn't possible to "Link back to the copyright holder's website", since the article doesn't appear there, but at the site of one of their 'licensees'. That licensee MIGHT have claim to monetary damages stemming from loss of ad revenue, but even then its a hard thing to prove, since seeing an article, even a full one, on another site often leads people back to the source. Righthaven though, has no economic interest in the article itself, since they have already derived their money from its license.
Righthaven exists for the sole purpose of extorting money from alleged infringers, many of which cannot afford to defend themselves in court, and will pay a settlement, even if they believe they are right. The ad revenue lost to the paper from any article being copied elsewhere is very small, so recouping that ad revenue by halting infringers is not significant, and is obviously not their aim, since they could do just that with a simple C&D letter.
Re:I disagree, sorry (Score:3, Informative)
Who came up with this magic 10%? The law says "substantial portions". It's up to a judge to decide what that mean on a case by case basis.
You CAN quote to refute a work (Score:4, Informative)
"You can't quote to refute a work."
Where did you get that idea? Comment and Criticism [stanford.edu] is at the heart of Fair Use Doctrine.
As for the most effective means of refutation, line by line or paragraph-by-paragraph refutation of a work of any length might be effective in the abstract, but I doubt most people would read it. In practice it is more effective to create a general framework of critique, and use selective quotes to drive your point home. This is likely why there hasn't been a hue and cry about the stifling inability in our culture to engage in argument.
I also don't understand why you put law in quotes. It is law, whether you understand it or not.
Re:"Because we say so" (Score:5, Informative)
Saying that "fair use is not a law" is a strange statement, since it is codified in the Copyright Act of 1976. It spells out a four-part test, which includes "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", which this example flunks pretty badly.
Re:"Because we say so" (Score:3, Informative)
Re:My view. (Score:1, Informative)
What you are missing is that Righthaven is the plaintiff
That shouldn't matter. Copying an entire article doesn't meet the criteria for fair-use. Doesn't matter if it was SCO, MS, Apple, or Righthaven.