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

Less protection?

[Anonymous Coward]

Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.

Re:Less protection?

[sydneyfong]

Ah. Jurisprudence.......

I believe in a more SchrÃdinger's Cat model of the law -- before it is decided, the law is half dead and half alive... :)

But seriously, even if the law existed before the decision, fewer similar cases will be filed against "infringers", which will make their lives easier.

Not everybody has the will or the means to fight this in court, even if they are actually "right".

Re:Less protection?

[Minwee]

And until you actually write his name, it is both "Schrödinger" and "SchrÃdinger". And when you have already misspelled it, it's too late.

Re:Less protection?

[Stormwatch]

Accentuation fuckups are usually text encoding errors, not typos.

Re:Less protection?

[mpoulton]

Um, no. The legal status is not determined by a judge de novo, but instead existed already. The outcome from lawsuit just exposes it, but it was already there, in the statutes, in the precedents, all of which you could look up.

I see you believe in the "natural law" theory. I think it has some merit as a means of describing the philosophical basis of law, but most scholars now agree that's not really how things work. In reality, the law is not a preexisting and inherently complete construct that waits for humans to discover and apply it. "Case law" is so named for a reason: courts do, in fact, make new law when they issue rulings that clarify or modify the existing body of law. This case did so. Prior to this ruling, it was not clear what the result of such a case would be, and by deciding it this way, the judge has created law that answers the questions presented here. This is one of the essential functions of a common law legal system, though it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results.

IANAL, but IAA law student with 6 weeks until graduation.

Re:Less protection?

[davester666]

Yes, Fair-Use Rights do exist. It's an affirmative defense, where you have to prove that you do have the fair-use right [by paying somebody to find the statues and precedents that are relevant and presenting them to the court in the proper way, generally].

But they only exist, in a legal sense, once a judge has made a determination that, for a given set of circumstances, based on the written law and precedences for a specific location, and for the specific facts of one case, that it is a 'fair-use'. If any of these change, then a judge would have to make a new determination for the new case.

Before a judge rules, neither side can say with certainty that for a given circumstance, it is or is not a fair use, as it depends on the specific circumstances of a single case, which is unlikely to be exactly the same as an existing precedent [which the copyright holder will be all to happy to point out to you].

And LTFS, this precedent, like most other ones related to fair-use of copyright material, has a very specific set of circumstances related to it, which may not cover other uses, even if done in a similar way [for example, if you had a personal blog with GoogleAds on it, and you quoted a significant portion of the article, the precedent may not apply to you because the judge could say you are trying to earn money through the use of ads].

But, then again, IANAL.

Re:Less protection?

[Bacon Bits]

Yes, yes, it's always a programmer's fault.

Re:Less protection?

[Compaqt]

While true, it's also worth exploring how this ruling can have an effect without being a binding precedent: When making a ruling, judges often look for older cases which are related in some way.

They often even look to foreign jurisdictions (other states, or even countries). Yes, they're not binding, but they sometimes get cited anyway, as in "ABC court decided X, maybe that's good legal reasoning."

So, we haven't won the war, but a small battle nonetheless.

(N.B. sig.)

I love it

[DaMattster]

when the sue for profit fails miserably. Righthaven deserved being spanked down by the justice system. The mafiosi tactics have failed.

HA!

[WillyWanker]

HAHAHAHAHAHAHAHA fuck you douchebags!

well..

[MickyTheIdiot]

Did the good guys win for once?

"the story in question was primarily factual"

[John Hasler]

The ruling is irrelevant to most of the news media, then.

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

[_0xd0ad]

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

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.

I don't think that ruling is correct and I expect it'll be overturned.

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

[Sique]

But the defendant prevailed on Fair Use claims. The statute of Copyright is limited, and the judge was showing Righthaven the limits of the statute.

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?

[snkiz]

Sure you can, schools to that sort of thing all the time, mostly with newpapers. That is the point of fair use.

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

[John Hasler]

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

That can be one of the factors in fair use.

And even if facts can't be copyrighted, a specific arrangement of them can be.

USA copyright protects only creative expression.

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.

See Feist v. Rural .

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.

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

[517714]

I believe the most important conclusion to be drawn is that copyright is to be used as a defense against others taking your published material and that without a takedown notice being issued, it serves as an offensive weapon only. That is the one part of the ruling that will stand up. Righthaven owns the copyrights and doesn't use or license them except for lawsuits so it was attempting to profit from the violation rather than simply to protect the material or obtain reasonable payment for the use of the material.

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

[Sique]

It's because the original claim from Righthaven, that the publishing of the whole article would diminish its value on the market was thrown out because Righthaven does in fact not publish the article, but solely files suits against other people publishing it. So republishing an article with currently no value at all on the market by a non profit was considered fair use.

About time

[shawnhcorey]

Now if someone could convince a judge that companies (like patent trolls) that suffer no loses should get no compensation, then things might start looking up.

Re:About time

[hedwards]

The problem there is at the federal level. Locally in order to be awarded damages you have to prove them. At the federal level there's all sorts of silliness like statutory damages and AFAIK there is no requirement that one demonstrate that one was damaged for other types either.

Court should mean everyone has something to lose

[redelm]

This is a normal outcome, particularly from a ruling rather than the more common settlement.

Court should not be the means of first-resort, but the means of last resort. Everyone who walks in the door should potentially have something significant to them to lose. Otherwise, why settle? Legal costs deter small players, unexpected adverse rulings have to deter large players.

It's called checks and balances

[tepples]

it is also one of the more controversial functions in the U.S. due to the inherent overlap between the legislative and judicial branches of our government that results

It's called checks and balances. The judicial branch's power to make case law is not unlike the overlap between legislative and executive branches in the U.S. government. The President has power to block legislation that has 51 to 66% assent, and agencies have power to enact regulations that fill in the details of a law that Congress wrote in broad strokes.

the Las Vegas

[homey of my owney]

Is that anything like "The Google?"

them sons of whores ...

[unity100]

what does "forfeiture of the domain name of the company" even BEGIN to mean ?

when at&t, general motors, or bp is sued, can anyone put a 'forfeiture of the trademark' clause in their demands ?

how can these sons of whores are even able to come in front of a court with such a demand ? dont excuse the strong language - im really out of strong words to describe this situation. if you know some, please use them in a sentence with word 'Righthaven' so that i will learn some socially acceptable strong wordage for such a situation.