Righthaven Copyright Lawsuit Backfires

Hugh Pickens writes "Steve Green reports in the Las Vegas Sun that US District Judge James Mahan has ruled that the Center for Intercultural Organizing, an Oregon nonprofit, did not infringe on copyrights when it posted an entire Las Vegas Review-Journal story on its website without authorization and that there was no harm to the market for the story. Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, didn't try to use the story to raise money, and because the story in question was primarily factual as opposed to being creative. 'The market (served by the CIO) is not the R-J's market,' says Mahan. This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Green says that Righthaven's strategy of suing 250 web site and demanding $150,000 in damages plus forfeiture of the web site's domain name has clearly backfired and now Righthaven, the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all."

Comments

Re:Didn't try to use the story to raise money?

[tinkerghost]

Fair use in the US hinges on many things, including how you're using the material. Educational non-profit usage rates fairly high on the fair use scale. Using the same material in the same way on a for-profit site may not have been able to succeed with a fair use claim.

Re:Didn't try to use the story to raise money?

[cpt kangarooski]

I thought violation of copyright didn't depend on whether you were trying to make money off the unauthorized use.

Normally no, but it is relevant in determining whether or not the use was a fair use; if it was fair, it is not unlawful despite otherwise being infringing. Of course, there are a number of factors that go into determining fair use, and it is always very fact-dependant. Just because a particular type of use is fair under one set of circumstances doesn't mean it will be under others.

And even if facts can't be copyrighted, a specific arrangement of them can be. The phone book's pages are copyrighted, even if the names and numbers aren't. You can copy the information but you can't just scan the pages themselves and reprint them.

Can be doesn't mean is, though. The arrangement and selection of non-copyrightable facts must itself be creative in nature as well as original (though do remember that originality, i.e. not having been copied, is not the same thing as novelty, i.e. never having been done before). A typical white pages will not be copyrightable in it's arrangement and selection of facts because it selects all the facts for a given area (few people want a phone book with only some listed numbers) and it arranges them in an uncreative way: last name, first name or initial, address, telephone number. Often this isn't an original way either, since they're just copying how other phone books were arranged.

In any case, I doubt there were arguments made that the article was uncopyrightable. Rather, how factual vs. how original a work is is another part of a fair use analysis. Generally, uses are more likely to be fair, the more factual the work used is.