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Righthaven To Explain Why Reposting Isn't Fair Use
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."
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).
Your hair look like poop, Bob! - Wanker.
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/.
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.
They posted the full story on their own site, that's not remotely close to fair-use. They should have done an editorial selecting various points and link back to the original. This is a blatant copyright violation, just as much as providing direct download of copyrighted music and video.
Nice riposte.
Previous poster is correct. It is not fair use, and Righthaven will win. The judge will award them all of the non-profit's profits for the next year.
If Slashdot were chemistry it would look like this:Cadaverine
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.
I love Mondays. On a Monday, anything is possible.
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 advancing the useful arts and sciences.
Yet copyright "law" can be and is used to shut down debate.
I'm not a lawyer, but I play one on the Internet. Blog
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.
My blog
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.
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.
Really? I'd say that advertising exposure is of considerable importance to "fair use". One of the four main tests is whether it reduces the commercial value of the writing, and if I can read the whole article without any chance of seeing the ads that reduces the commercial value. Otherwise, copying anything off over-the-air television would be potentially fair use, since the only commercial value of (say) a football game is to expose the viewers to commercials.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
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. Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.
And I would say the advertising revenue is of no concern whatsoever in this case, since the party losing the ad revenue is the newspaper, but... (wait for it...) they aren't the ones suing.
Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.
Now, they could possibly resell the article to other newspapers, but they aren't, because that isn't their business model. Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.
This is nothing but the newspaper equivalent of the MPAA/RIAA lawsuits, where you smack someone for infringement, extort them for a settlement because they can't afford to defend themselves in court, then move on to the next person. One of their lawsuits has already been dismissed and found to be baseless, how many settlements have been made on similar cases, that might have been thrown out had the defendants had the money to fight in court?
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.
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.
Handing out paper copies on the street in front of the charity HQ is probably that.
But posting it to the Internet where it can be retrieved by anyone instead of going to the copyright owner's site? That is not fair use.
For some "non-profits", that could be a considerable sum.
So simply dunk it in baking soda and watch the fireworks.
Supporter of the +1 Over Dramatic mod option. In memory of apk.
Ordinarily, I would agree with you. However, Righthaven is a company that exists for the sole purpose of filing copyright lawsuits against anyone who uses any part of an article published by the Las Vegas Review Journal. Righthaven does not publish anything. As far as I can tell, they don't even sell the rights to publish anything. What you miss is that since the organization being sued is a non-profit, Righthaven must show how their publishing of the article reduces Righthaven's ability to make money from the article. Since Righthaven doesn't make money from the article (except from copyright infringement lawsuits), this will be a hard sell in court.
The truth is that all men having power ought to be mistrusted. James Madison
Interesting. So does Righthaven simply purchase a swathe of articles and hope that someone infringes, or do they wait for someone to infringe and then buy the article?
Either way, this does change things. If the former then their net profit from a typical article is negligible and the net loss is also extremely small considering the value they place on an article (this business model will not be viable if they pay a reasonable amount per article). If the latter then it seems bizarre to buy a property known to be damaged and then sue the person who damaged it, and this is essentially what they are doing.
Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html
Apocalypse Cancelled, Sorry, No Ticket Refunds
The page in your link shows CEO salaries, not organization profits.
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.
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.
I am becoming gerund, destroyer of verbs.
I wouldn't think that matters. Wouldn't the payment they can get for licensing it back to the newspaper depend on the ad revenue it could get? If it can't get much ad revenue, they can't license it for much.
Of course the newspaper already paid them for *this particular* article, and they can't lose this preexisting payment, only future payments for future articles, but that would be like a situation where the newspaper did own the article and you tried to claim that the advertisers already paid them for the ads and they only lose revenue for future ads.
"You can't quote to refute a work."
Where did you get that idea? Comment and Criticism 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.
Read the EFF's Fair Use FAQ
Indeed. The summary seems to suggest that just because it's a non-profit organisation doing the reposting and they gave some sort of credit, they have carte blanche to completely ignore copyright. It's surprising that any judge would behave this way, so I'm thinking there is more to this story than we have heard so far.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
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.
http://alternatives.rzero.com/
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 publishing the information for free, or as long as you comply with requests from the copyright owner to remove the content from your site. But I guess that's too much of a commonsense position for a court.
Hey don't blame me, IANAB
Maybe the judge just thinks the lawyer that righthaven sent is an asshole, and he wants him to do as much work as possible. Judges basically get to do whatever they want in their own courtroom anyway. NPR had a story I heard yesterday where the judge refused to accept a motion to dismiss a case... from the prosecution. I didn't even know such a thing would be possible, but apparently judges really do have almost unlimited power in their little domains.
How is that hard to prove?
"Your honor, if this organization is allowed to republish this work without us successfully suing them, we will not get the money we would have from suing them!"
- RG>
Hey pal, this isn't a pleasantforest, so don't waste my time with pleasantries!
Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.
Under that model the value of the work is defined by their profit from a lawsuit. So if they win and get a settlement, the value is increased; thus, on appeal, they will lose. But now they expended all these legal fees, and have taken a loss. Their license on the article now has a negative value; thus, on a second appeal, they will win.
The question we need to ask is how many appeals will land this in the Supreme Court? If it's an odd number, Righthaven will spiral into bankruptcy. If it is an even number, Righthaven's business model will make them an unstoppable profit machine.