Republishing Entire Newspaper Story is Fair Use–Righthaven v. CIO

By Eric Goldman

Righthaven, LLC v. Jama, 2011 WL 1541613 (D. Nev. April 22, 2011). See my comprehensive blog post on Righthaven from October.

[Note: A month ago, the judge orally dismissed the defendant in this case. Yesterday, the judge issued its written opinion articulating that ruling.]

The defendants run a website on immigration issues. They posted to their website 100% of a 33 paragraph Las Vegas Review-Journal story on Las Vegas police targeting minorities. The post attributed the story to the Las Vegas Review-Journal. Righthaven then acquired the copyright to the story and, following its standard tactics, sued the defendants for copyright infringement without sending a takedown notice. The defendants asserted a fair use defense, and the court granted it on summary judgment. Its four factor analysis:

* the defendants’ use was transformative because Righthaven is a litigation-driven business, the republication was to educate the defendants’ audience, and it had no substitutive effects. The use was also non-commercial because the defendant organization is a non-profit with an educational focus. The fact that its website solicited donations was immaterial.

* the article was an “informational work” which put it closer to fact than fiction.

* even though the defendants took 100% of the work, doing so was reasonable because the article wasn’t easily distilled or edited.

* because the use was transformational and non-commercial, the burden was on the plaintiff to show market harm. It failed (1) because Righthaven didn’t allege there was a market for the article itself, and (2) “because Righthaven cannot claim the LVRJ’s market as its own and is not operating as a traditional newspaper, Righthaven has failed to show that there has been any harm to the value of the copyright.”

Normally, we’d have to wait to evaluate the impact of this ruling until we see how it fares on appeal. However, I believe Righthaven will not be around long enough to see the appellate decision. I have consistently said that Righthaven’s business model isn’t sustainable, and the combination of their avoidable litigation errors (e.g., their 24 hour lawsuit against Eriq Gardner) plus their heavy staff turnover will hasten their demise. At this point, I assume it will only take one or two 17 USC 505 fee-shifts to the defendant to make Righthaven’s economic model irreparably untenable. At this rate, I think 505 fee-shifts are inevitable for Righthaven.

Unless and until this ruling is reversed on appeal, its reasoning will accelerate Righthaven’s losses in court. After Righthaven’s loss in the Realty One case, which said the republication of an article excerpt was fair use, Righthaven said it was focusing on bringing cases only involving 100% republications. Now that this opinion indicates that even 100% republications can be fair use (an argument I proponed in my debate with Steve Gibson last September in the BC Edge call), all of Righthaven’s lawsuits over 100% article republications by non-profit defendants (and perhaps others) are at risk.

Righthaven could still find more litigation success suing over 100% republications of photos instead of articles. However, Righthaven has gone out of its way to annoy the judge hearing ALL of those cases. As a result, I think those cases are in serious jeopardy too. With its losses in the Realty One and CIO cases and the possibility of losing the photo cases, I think at this point Righthaven has nowhere to go…except into the dust….

There has been some chatter that before Righthaven flames out financially, it will create a body of caselaw that is ultimately disadvantageous to newspapers and content owners generally. Indeed, with Righthaven’s help, we are beginning to build out a body of blog-related copyright law, and I expect both the Realty One and CIO opinions to be frequent citations in future online copyright cases. We may ultimately owe a debt of gratitude to Righthaven and its newspaper participants–and the defendants who are bearing the cost and risk of standing up to Righthaven–for this public good.

Steve Green’s writeup of this opinion.

Disclosure note: One of my ongoing clients was sued by Righthaven and settled its case.