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Righthaven To Explain Why Reposting Isn't Fair Use 169

Posted by timothy
from the horatio-alger-villain dept.
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."
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Righthaven To Explain Why Reposting Isn't Fair Use

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  • My view. (Score:4, Informative)

    by OverlordQ (264228) on Wednesday November 24, 2010 @02:48PM (#34335124) Journal

    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).

    • Re:My view. (Score:4, Informative)

      by Attila Dimedici (1036002) on Wednesday November 24, 2010 @02:57PM (#34335216)
      What you are missing is that Righthaven is the plaintiff in this case and appears to be a copyright troll (that is, they have sued lots of people for copyright infringement, many times in cases that were blatantly fair use). The judge is basically saying, "I don't like you, you have wasted the court's time on numerous occassions, so I am going to force you to make the case that this use in some way damaged your revenue more than it enhanced it."
    • by Thagg (9904)

      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.

      • by OakDragon (885217)
        They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!
        • They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!

          "When I downloaded those files, I didn't expect a kind of Spanish Inquisition." - Thomas-Rasset

    • Re:My view. (Score:4, Insightful)

      by canajin56 (660655) on Wednesday November 24, 2010 @03:07PM (#34335346)

      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).

      However, they are not being sued by the LVRJ, they are being sued by a puppet corporation that LVRJ sold the article to in exchange for a license to keep using it in the LVRJ. So, since their puppet corporation is not publishing it and is not making any money off of it except by suing, that will be a hard sell. If anything, since the only way this puppet corporation makes money is by being sold articles so it can attack, republishing LVRJ increases their revenues, so the effect is "positive" ;) Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. But since they aren't being sued by the LVRJ...

      • Re: (Score:3, Insightful)

        by Nadaka (224565)

        ... Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. ...

        What the hell? If you have permission, you have permission and it isn't a copyright violation.

        • Re: (Score:3, Informative)

          by canajin56 (660655)
          My subordinate clauses got tangled. "without permission, even with a citation".
          • My subordinate clauses got tangled. (Not that I think it's right to republish entire articles) "without permission, even with a citation".

            Fortunately the law is not based on what you think it right or wrong... ;-)

    • by zzatz (965857)

      Do you really think that a local newspaper lost sales to an advocacy group in another city? People in Las Vegas chose to wait for a later copy of the article somewhere else, instead of the earlier version surrounded by other articles of local interest?

      Context matters. It is possible that LVRJ lost no sales at all.

    • Re: (Score:3, Interesting)

      by mcgrew (92797) *

      Odd, the local newspaper (Springfield State Journal-Register) uses a GPL license for stories that aren't copyrighted by the AP or other paid sources.

  • WTF is Righthaven (Score:5, Informative)

    by slodan (1134883) on Wednesday November 24, 2010 @02:49PM (#34335132)
    If you are like me, you thought, "What the fuck is Righthaven?"

    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].

    • Re: (Score:2, Insightful)

      by KublaiKhan (522918)
      It's a parasite.

      The company creates no value, and acts to remove value from the marketplace via litigation. While the ostensible purpose is to protect the interests of the LV Review-Journal, I question whether a newspaper--no matter how well or poorly circulated--would need an entire company to protect its intellectual property; last I checked, that was usually handled by the newspapers' legal department.

      So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and
      • So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and all other similar companies that exist only to parasitize others' work were dissolved.

        Preferably using a strong acid.

        (Only partly joking.)

        Cheers,

    • by Aladrin (926209) on Wednesday November 24, 2010 @02:59PM (#34335252)

      Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

      • by rakuen (1230808)
        They could issue a C&D instead of immediately jumping to the lawsuit stage. Let the people know their use of the articles from the Las Vegas Review Journal is not appreciated, and give them a chance to remove it in good faith before pursuing litigation. It would be a nice thing to do, and would probably prevent a lot of the cases on the docket.

        Of course, they're probably not doing this, which means you could make a decent conclusion that they're simply out for money.
        • Re: (Score:3, Informative)

          by shentino (1139071)

          But if they did that they wouldn't be able to exploit the baseless settlement gravy train.

      • Re: (Score:3, Interesting)

        by Rary (566291) *

        Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

        You assume that the defendants are always guilty. Given that Righthaven has already lost one of these lawsuits because the act in question was a valid fair use situation, then yes, "unsuspecting" is applicable.

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

          • by mpe (36238)
            I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

            It sounds like the judge is saying something akin to "I can't see that you have any case at all. This is your last chance to convince me that you are not just wasting my (and the defendant's) time."
          • by Pharmboy (216950) on Wednesday November 24, 2010 @04:41PM (#34336420) Journal

            I thought we still had some notion of "Innocent til proven guilty" in this country

            Only in criminal cases, not civil cases.

            I am also a bit weary about jumping to the defense of the non-profit on this one. While they did give credit properly, they didn't include excerpts, they copied the entire article wholesale. My understanding of copyright and fair use seems to tell me that this is not actually "fair use" and actually is infringing, as it does prevent any need to go to the original author to read the whole thing, and *does* deprive the content creator the ability to profit from their work. That is the idea of copyright, granting an exclusive right to profit for a limit amount of time, in exchange for the content eventually becoming public domain. That the non-profit didn't make a profit off the work isn't meaningful, and the content creator was denied the opportunity to.

            That said, it is the kind of infringing that warrants a "you need to remove the article as a whole, and only use excerpts, instead pointing to the original article" type of letter, not legal action. At some point, the courts need to throw these cases out simply because the court shouldn't be the first course of action, and should instead be the LAST RESORT, after other reasonable methods have been exhausted.

  • If the non-profit organization liked the story, why wouldn't they simply acknowledge Righthaven by way of summary and then link back to the source. Copying verbatim, even with acknowledgement, denies Righthaven hits to its website that otherwise would have been forthcoming.

    What is fair use? IANAL but I would hazard a guess that entire reproductions without permission aren't fair.

    • Righthaven *doesn't publish anything* they only buy the articles from the authors/owners and then sue people for using them.
    • Re: (Score:3, Informative)

      by canajin56 (660655)
      They can't link to Righthaven because Righthaven doesn't print the article. The Las Vegas Review Journal does. It's bad press when a newspaper sues a reader for reprinting a single quote from the paper, so they "sell" their publications rights to a puppet company they run, and that sues people. Yes, in this instance it's the entire article, but they are scattershotting lawsuits at any matches. They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they
  • One of the stupidest aspects of copyright "law" is this:

    You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

    The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

    Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for ad

    • by Rary (566291) *

      I'd like to see citations regarding this. It seems to me that as long as you're not quoting the work in its entirety, then the resulting work would be transformative and fair use. Is it really necessary to quote every single sentence in order to refute it?

      • Re: (Score:3, Funny)

        by blair1q (305137)

        Is it really necessary to quote every single sentence in order to refute it?

        Only in an academic sense. Generally one picks out the most egregious portions and refutes those. Then one gets accused of hiding from the facts by taking quotes out of context. Then one slings mud, then one ducks mud slung.

        You know. It's like the Internet.

      • Re: (Score:3, Funny)

        by Hork_Monkey (580728)
        He can't provide evidence of it because that would be a copyright violation.
    • Re: (Score:2, Insightful)

      If you refute with humour, than you have a fair chance at claiming that your work is parody protected (Sorry, I couldn't resist the bad pun)
    • by Infonaut (96956) <infonaut@gmail.com> on Wednesday November 24, 2010 @04:14PM (#34336120) Homepage Journal

      "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.

    • by Minwee (522556)

      You can't quote to refute a work.

      I'm going to have to ask for some corroboration from a legal authority on this statement, as I find it difficult to reconcile with my understanding of copyright law.

      Or, in simpler words, Torts or Get The Frack Out.

    • by MarkGriz (520778)

      "Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar."

      Hopefully we are allowed to use logical OR, rather than exclusive OR

    • Re: (Score:3, Funny)

      by guyminuslife (1349809)

      One of the stupidest aspects of copyright "law" is this:

      You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

      Yes you can.

      The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

      No, it isn't.

      Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

      Hardly.

      Yet copyright "law" can be and is used to shut down debate.

      Not really.

    • by BillX (307153)

      "Entirety" is only one of four factors [university...fornia.edu] used in deciding whether a use of a copyrighted work is fair use. Some other biggies are whether it is transformative (yes! You've turned a pro-x argument into an anti-x argument, and added plenty of original material), "purpose and character" of your use (whether the goal of your use is to serve a societal purpose or just make money), the nature of the original work (in general, the more 'creative' rather than functional/factual the work is, the stronger its protectio

  • by eepok (545733) on Wednesday November 24, 2010 @03:33PM (#34335660) Homepage

    The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

    It reminds of the the "out-of-print" book issue. Writer Bob writes a book. It's published and distributed. Demand for the book wanes, Bob dies, and the publisher pulps surplus stock. If someone wants to buy the book, s/he has to dig through used book stores or the like and, if the book is ever found, pay a premium for a book that is no longer in print. The reader just wants the content, not a collector's item... and yet it's not exactly legal to acquire the content without purchasing the rights from the publisher.

    • by blair1q (305137)

      That's the problem. The solution is to write your own article, or to maintain your links.

      • Re: (Score:3, Insightful)

        by Todd Knarr (15451)

        The problem is you can't maintain links. The material the link points to can change or be removed entirely, which creates a problem. If I criticize someone's positions or evidence in their article, they can change the article and smear me for having lied about what they said and I can't prove a thing. The only way I can prove they said what I say they said is to make my own copy of their article, one that they can't change, and serve it up off my own servers alongside my commentary on it. And I may need to

        • Re: (Score:3, Interesting)

          by el3mentary (1349033)

          You could always host a full copy locally just in case the link does die/the article is purged for some reason and only publish it in that case. Loss of revenue would be invalid in that case as they wouldn't be generating of course this only works in the case of NPO's

          • by blair1q (305137)

            Copyright doesn't care about loss of actual revenue, only loss of potential revenue, but even in cases of zero potential revenue copyright may still apply.

            I have a right to keep copies of my work from being printed as well as to print them, whether or not my work is available to the public.

            If I choose to release my work for a few months every decade, then that's my choice, and anyone making copies of it without my permission in the interval is in violation of the law.

        • by blair1q (305137)

          If you're criticizing someone, do proper fair-use excerpting.

          Then, if they make the original document go away, criticize them for that.

          But don't give them legal ammo by stealing their work and wrapping it in nominal "criticism" just to pretend it's fair use.

      • The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

        That's the problem. The solution is to write your own article, or to maintain your links.

        That's not a "solution", that's a crappy and unnecessarily labour-intensive workaround. Idiocy like this is why most of the 20th century's literary, musical and cinematographic legacy is disappearing down the toilet of history -- fear of brokenly restrictive copyright law makes people unwilling and, indeed, unable to properly preserve cultural artefacts by copying and sharing them after the original creators and/or publishers have died and/or lost interest in the works.

        The real solution is to fix bloody cop

        • by blair1q (305137)

          Bullshit.

          You can make copies for your personal use. Who's to stop you? Who's to know?

          Personal use could include waiting out the copyright.

          But really, it's not your right to steal something just because you think it's historical. It belongs to the person it belongs to and not to you.

          If you want to preserve it before it's in the public domain, buy it from the person who owns it. If it's at all valuable to you, you'll pay. And that's the point.

          • You can make copies for your personal use.

            Not in this country, you can't. Also, this assumes that you have access to a copy. Example: there's a book I read when I was a young teenager. Our family copy was lost sometime in the early 2000s. I want to read it again. It went out of print in the 1970s. Copies are like gold dust, because it was printed as a rather shitty mass market paperback, and they tend to self-destruct within about 50 years anyway (the glue perishes and the paper oxidises). If it had entered the public domain within a reasonable tim

            • by blair1q (305137)

              Three words:

              Library. Of. Congress. If someone wants their work preserved, they'll submit it to the Copyright Office and it will end up there.

              The rest of your issues are epistemological problems, not relevant to copyright.

              The fact that you can't keep track of a book you once owned will never invalidate the rights of its author.

      • Re: (Score:3, Insightful)

        by pz (113803)

        That's the problem. The solution is to write your own article, or to maintain your links.

        Or, purchase rights to the work. The work is copyrighted, and you want to copy it. It's really quite simple. The owner will, very likely, sell you rights, at least if they are a publishing house.

        I do that all the time for images that I use in my business-related presentations. For most copyrighted work that is owned by a company of some sort, it is relatively straightforward to approach their business development people and strike a deal. Usually this is as easy as finding the right page on their web s

    • and yet it's not exactly legal to acquire the content without purchasing the rights from the copyright holder.

      Clarified that for you. Authors have been retaining copyright more and more often these last 30 years.

      Publishers are given rights to copy and distribute. If they are given exclusive rights to copy and distribute, and the (copyright holder) lets you copy/distribute, the publisher then has a beef with the copyright holder, not you.

  • Strange that a judge has to decide the merits of a case based on the length of their queue.

    I guess it would make sense to dismiss the case for lack of enough public interest, but to set a precedent?

    In my opinion, reposting is violating the rights of the copyright owner to pull the story(or other content, programs come to mind) from their website, for example to charge money for it.

    I think reposting without a financial interest might still constitute fair use, as long as either the copyright owner is still p

  • This case raises two really interesting undecided questions in fair use which I've heard batted around.

    1.

    Some friends of mine who are media law defense attorneys always insist that Fair Use is not a "defense," because the phrasing surrounding fair use is always "a fair use IS NOT infringement" rather than the typical language of affirmative defenses, which would say, "an infringement is PERMITTED(/not actionable/shall not result in damages) given fair use." This means that it is the plaintiff's obligation t

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