BVR’s IPBlog has looked at Righthaven’s tactics to enforce copyrights and the recent U.S. District Court decisions that questioned those tactics and Righthaven’s standing to sue. What got overshadowed was one judge’s concomitant ruling that allowed a website posting of a word-for-word, 19-paragraph article from the Las Vegas Review-Journal without the publisher’s permission as “fair use.”
Besides the fact that only five of the 19 paragraphs could be considered purely creative work, “Righthaven did not present any evidence that the market for the work was harmed by [defendant’s] noncommercial use for the 40 days it appeared on the Website. Accordingly, there is no genuine issue of material fact that [defendant’s] use of the work was fair and summary judgment is appropriate,” ruled Judge Philip Pro. This appears to be a liberal interpretation of fair use and may well have been influenced by the climate Righthaven has created for itself.
According to the Copyright Office, the distinction between fair use and infringement is not easily defined. There is no specific number of words, lines, or notes that may be taken without permission. Here is the way the statute reads:
… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Nowhere to be seen in these examples of fair use given at the Copyright Office (from The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law) …
“quotation of excerpts in a review or criticism for purposes of illustration or comment;
“quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;
“use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report;
“reproduction by a library of a portion of a work to replace part of a damaged copy;
“reproduction by a teacher or student of a small part of a work to illustrate a lesson;
“reproduction of a work in legislative or judicial proceedings or reports;
“incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported,”
… is a blatant, whole-cloth reproduction of someone else’s article, word-for-word, for publishing without permission on a website to reinforce an opinion. This is rare.
No matter the setbacks and the current climate, Righthaven isn't going away. They've hired new lead counsel, and they have reportedly changed the agreement between Righthaven and Stephens Media (the IPR owner).