Righthaven, the copyright troll we’ve mentioned a few times in the last few months, has just seen one of its lawsuits backfire in a major way, that could affect every newspaper in the country if upheld on appeal.
On Friday, a judge stated that he was going to dismiss a copyright lawsuit filed by Righthaven, a company that buys up copyrights from the Las Vegas Review-Journal and other papers for the purpose of suing violators, against a Portland, Oregon nonprofit organization on grounds of fair use.
Even though the nonprofit, the Center for Intercultural Organizing, reposted the entire article without permission, the judge found it to be fair use because the story was being used for educational purposes rather than to try to raise money, and the nature of the story was primarily factual rather than creative. He also found that the CIO’s use did not harm the market for the story.
He also smacked down Righthaven for misusing copyright to make money and chill free speech, rather than encourage and protect creativity as per the federal Copyright Act.
The case will be appealed, of course, and does not set a binding precedent for other Righthaven cases underway, but it will at least make Righthaven think twice about suing other nonprofits in the future.
In an article in the Las Vegas Sun, Steve Green points out that, where newspapers used to be able to get infringing content taken down with a polite phone call or email, the Las Vegas Review-Journal and Righthaven have potentially weakened the copyright protection US newspapers enjoy over their stories by wading in and suing without any preliminaries.
If this decision is adopted by other judges and upheld on appeal, it would mean any nonprofit could post without authorization entire stories from the Las Vegas Sun or any other newspaper — and presumably television and radio reports as well.
In this era of electronic journalism, where republishing stories in their entirety is as easy as copying and pasting, that could be worrying news for the newspapers that could be affected. Something tells me that the editor of the Las Vegas Review-Journal is not going to be very popular at newspaper-industry social events in the near future.
The article sums up a number of problems facing that and other Righthaven lawsuits. One of the biggest is that, in buying up copyrights solely for the purpose of suing, Righthaven automatically forfeits one of the four factors of the fair use test, that of market harm—since they own the copyright and are only using it for the purpose of suing, one law professor pointed out, there is no market. Another factor weakening Righthaven’s cases is that the newspapers in question encourage online sharing of their articles (via social networking and the like).
In any event, it gives me a nice warm feeling of schadenfreude to watch Righthaven’s business model teetering, if not outright imploding. It’s nice that at least some judges will not stand for this type of lawsuit farming.
(Found via Slashdot.)
There are two major weaknesses that this judgment rightly isolates. The first, is the procedural leap-frogging. The law likes sequential efforts, escalating each step of the way, but with an eye on the easiest resolution possible. I’m sure that most violators would gladly cease and desist regardless of the legal rights at hand. Second, is the chilling of free speech. The law is not a hammer which a lawyer can swing at will for the sake of monetary gain. The aggressive, freewheeling modus operandi cuts against the grain of law’s intent. But in saying that, I think that Righthaven’s actions will have the long waited impact of untangling and clarifying copyright use in the digital era. It’s an important issue to follow … if you like to see how simple words become bullets of change. This is definitely an “Experimentum Crucis” (a Critical Experiment).
“Steve Green points out that, where newspapers used to be able to get infringing content taken down with a polite phone call or email…”
Yes, and when this happened there was invariably a hue and cry about “OMG these ppl are sending out NASTY LAWYER LETTERS because all I did was copy their stupid article, COPYRIGHT IS A USELESS ARTIFACT AND SHOULD TOTALLY DIE”.
Indeed, in Simeon’s post we see…
“I’m sure that most violators would gladly cease and desist regardless of the legal rights at hand.”
But then…
“The law is not a hammer which a lawyer can swing at will for the sake of monetary gain. The aggressive, freewheeling modus operandi cuts against the grain of law’s intent.”
So, which is it? Violators will gladly cease and desist? Or lawyers can’t just run around doing whatever they want?