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To Righthaven’s Dismay, Judge Rules Copying of Entire Article Fair Use

Fair use is evaluated on a case-by-case basis

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To Righthaven’s Dismay, Judge Rules Copying of Entire Article Fair Use
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Righthaven was dealt another blow in court this week when a judge ruled that one of the defendants it was suing over copyright infringement had fairly reposted an entire article from client/partner Las Vegas Review-Journal.

If you’re unfamiliar with Righthaven, it’s a company whose sole purpose appears to be to sue bloggers and media outlets who have used content it has purchased the copyrights to (typically from Stephens Media (which owns Las Vegas Review-Journal), and share the winnings with the original owner of the content. Righthaven’s ethics are questioned time and time again, as it has filed hundreds of suits, a number of which have been settled out of court. For more background on Righthaven, read our ongoing coverage here.

In this particular case, Wayne Hoehn, a war veteran, has posted an article from the Review-Journal in its entirety to a site, aiming to generate discussion about it. The judge is quoted as saying:

“Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate.”

“While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the work is not within ‘the core of intended copyright protection.’”

The ruling also notes that fair use is evaluated on a case-by-case basis. “Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, . . . and a reasonable trier can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.”

This isn’t the first time we’ve seen Righthaven lose a case like this, in which the republishing of an entire article was deemed fair use. Back in March, there was a case involving a 33-paragraph article (also from the Review-Journal of course) that was published by the Center for Intercultural Organizing (with credit). The article was related to the non-profit’s cause, and deemed to be serving a different market and within the bounds of fair use.

A couple other things that appeared to have an impact on the judge’s decision were the fact that the piece was used as part of an online discussion, and Righthaven’s growing reputation itself, particularly with last week’s dismissal of a case where Righthaven had sued Democratic Underground over an excerpt of a Las Vegas Review-Journal article a user posted in its forum.

To Righthaven’s Dismay, Judge Rules Copying of Entire Article Fair Use
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