Copyright Troll Clobbered: Judge Finds Use of Entire News Article Fair Use

In Righthaven LLC v. Jama and Center for Intercultural Organizing, 2011 WL 1541613 (D. Nev. April 22, 2011), on a summary judgment motion, the court found use of an entire news article to be fair use.  Righthaven is a notorious copyright troll.   II. Legal Standard

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996); Fed.R.Civ.P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Orr v. Bank of America, 285 F.3d 764 (9th Cir.2002) (articulating the standard for authentication of evidence on a motion for summary judgment).
The court may “[a]fter giving notice and a reasonable time to respond ... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not genuinely be in dispute.” Fed.R.Civ.P. 56(f). Here, the court has invoked subdivision (f) and given the parties a reasonable time to respond to the order to show cause. Although the plaintiff has requested discovery, noting that the party against whom summary judgment is granted must be “on notice that she had to come forward with all of her evidence,” Celotex Corp., 477 U.S. at 326, the court finds that further discovery is unnecessary, as the court already possesses enough information to rule as a matter of law on the issue of fair use.
III. Fair Use Analysis
A plaintiff must satisfy two requirements to present a prima facie case of copyright infringement: (1) ownership of the allegedly infringed material, and (2) that the alleged infringers violated at least one exclusive right granted to copyright holders. 17 U.S.C. §§ 106, 501(a). However, even where a plaintiff has alleged a prima facie case of copyright infringement, the defendant may refute the claim if the defendant has engaged in a fair use of the material.
The fair use doctrine is an affirmative defense to a claim of infringement, which protects certain uses of a copyright. The court considers four factors to determine whether the use of a copyrighted work is fair: “(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.” 17 U.S.C. § 107. The four factors should be considered in light of the purposes of copyright to promote the progress of science and useful arts and to serve the welfare of the public. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir.2007) (internal citations omitted).
“Fair use is a mixed question of law and fact. If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact 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.” Los Angeles News Serv. v. KCAL–TV Channel 9, 108 F.3d 1119, 1120 (9th Cir.1997) (citing Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985))). Here, weighing each of the four use factors and resolving all issues in favor of plaintiff Righthaven, the court finds that a reasonable trier of fact could only reach one conclusion—that the alleged infringement qualifies as fair use.
Righthaven, LCC v. Jama L 1541613, 1 -2 (D.Nev.,2011)

In analyzing the first prong, the court compared the original use:  news reporting with the allegedly infringing use: education, and found the use to be transformative based on these different purposes.   The court found the use to be non-commercial.

Second, the court found the nature of the copyrighted work to be an "informational work" entitled to a lower level of copyright protection, a factor weighing heavily in favor of fair use.

Third, the work was used in its entirety, but the defendant did not delete plaintiff's copyright information.  The court found this to favor neither party.

Fourth, the court found it to be a non-commercial use, and that the plaintiff thus had the burden of affirmatively showing a likelihood of market harm.   Plaintiff failed to allege that a market exists.

Coloring the court's analysis is Righthaven's position as a licensee hired just for the purposes of suing.  Although this decision does not spell it out, Righthaven is not a traditional newspaper.   Thus the court drew a distinction in the fourth prong that might have turned out differently had the newspaper brought the suit.

Righthaven has attracted a lot of attention as a copyright troll.   An informational site on Righthaven here.

Wikipedia on Righthaven here.

A site for Righthaven victims here.

EFF's activities to protect troll victims here.

Mike Masnick at  Techdirt has the best ongoing coverage of everything Righthaven, some links below.

Righthaven Demands Servers Of Website Sued, Even After Court Rejects Demands For Domain


Another Judge Slams Righthaven For Chilling Effects That Do Nothing To Advance Copyright Act's Purpose

Another Loss For Righthaven: Court Explains That Its Demand For Domain Names Is Silly

Righthaven Tells Judge Handling All Its Colorado Cases That He's Wrong

Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven



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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright Law: Fair Use Fridays - Kutiman Mixes YouTube - The Mother of All Funk Chords

Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:

§ 107. Limitations on exclusive rights: Fair use



Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The four "fair use" factors require a fact intensive analysis.   So what do you think of Kutiman's mashup/remix of videos he found on YouTube (video below)?  Cool?  Yes.  Fair use?  You decide, and check out Kutiman's other "Thru You videos on YouTube here.

Kutiman's thru-you.comhttp://thru-you.com/ says:  "Check out the credits for each video - you might find yourself".

Yes, another way for America to find itself.  Will Kutiman be YouTube's Andy Warhol, doling out 15 seconds of fame to the famous and not-so-famous?

 HT to Mike Masnick of Techdirt.

More Copyright Litigation Blog posts on the fair use doctrine here.

Copyright Litigation Blog reporting on Max Papeschi and the continuing NaziSexyMouse controversy here.  Pamela Geller, author of Atlas Shrugs Blog (and author of The Obama Administration's War on America's post "The left owns western culture. Music, media, arts.  Where does the road of leftism lead?  To hell." Full post here.  That's a relief! Up until now, everyone was thinking that NaziSexyMouse was a vast right wing conspiracy.



Purchase Copyright Litigation Handbook from West here

ACTA Update: Obama Administration's IP Strategy Comes Under Fire From Tech Associations

For background on the Anti-Counterfeiting Trade Agreement, visit the excellent Wikipedia page.

Last week my post on ACTA was picked up in a very kind and thoughtful review by Mike Masnik, of Techdirt, here. Thanks, Mike!  I didn't know anyone read my blog.

My take on ACTA, agreeing with EFF that Anti-Counterfeiting Treaty is a Sham" here.

A great analysis (in a more subdued and more thoughtful - and thus credible - Washingtontonian way), from the Center for Democracy you will find here.   Looking past the measured language, they are accusing copyright lobbyists of wishing to get through ACTA what they might not get in the US, take over Third World governments and use ACTA as a means of cramming copyright content into those countries' media systems while completely depriving the citizens of those countries of rights equivalent to the First Amendment.

And below a link to recent developments on Capitol Hill - consumer electronics trade associations waking up to ACTA's implications: Consumer Electronics Association, TechAmerica and the Computer & Communications Industry Association

Three tech associations oppose Obama IP effort on anti-counterfeiting deal - The Hill's Hillicon Valley

Ben Scheffner's March 3, 2010 post of a letter from USTR Ron Kirk to Sen. Ron Wyden (D-Or) claiming that ACTA would not alter existing US law here.

Purchase Copyright Litigation Handbook from West here