By Naila AlKhalawi & Ryan McAdam
http://www.wired.com/threatlevel/2011/06/fair-use-defense/
http://arstechnica.com/tech-policy/news/2011/08/righthaven-rocked-owes-34000-after-fair-use-loss.ars
Context & Background
Fair use is a limitation on the exclusive rights – typically granted to copyright owners – which allows unauthorized use of copyrighted work. This is detailed by the Copyright Act 17 U.S.C. §107, which examines a number of aspects including restricting the portion that is used relevant to the full copyrighted work. In some cases however, such as Righthaven v. Wayne Hoehn, a full reproduction of a copyrighted work may be deemed by the Court as fair use.
The plaintiff, Righthaven, claimed copyright infringement of an editorial piece from the las Vegas Review-Journal owned by Stephens Media. Hoehn (the defendant) had posted all 19 paragraphs of the editorial, including the headline, to a discussion forum he used in order to prompt responses. Hoehn’s defense centered around his actions being protected under the fair use doctrine.
Relevance & Importance
Copyright law was intended to promote the progress of the arts and sciences, however, this may be abused by non-practicing entities (i.e., copyright trolls). In this case, a fair use defense has allowed Hoehn to counter the infringement accusations by Righthaven, a Las Vegas-based copyright litigation factory and a subsidy of newspaper publisher Stephens Media. The company’s business model is based on suing bloggers and commenters on the grounds of copyright infringement. Righthaven has sued more then 200 websites, of which more then 100 have settled out of court.
The article briefly touches on the four considerations of fair use, in addition to the notion of copyright ownership. Relevant factors include the purpose and nature of the work, as well as the portion and the market impact of the copied work.
Although the Copyright Act will normally regard the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” to be a key factor in determining fair use, this is one of the fewer cases where the full reproduction of the work justified. The court did consider the fact that only 5 of the 19 editorial’s paragraphs were “purely creative opinions” of the author, but even that may have not been sufficient in other cases to claim fair use.
More importantly, the case illustrates a broad and flexible viewpoint that has been taken by the court in examining the previous activities of the third party who initiated the lawsuit. The fact that Righthaven does not own the copyright and makes its profit out of similar litigation brings forth the question of whether the copyright law is being abused for personal gain rather then its intended purpose. A previous court has found that such litigation efforts are “disingenuous, if not outright deceitful”.
Legal Questions
It is possible that copyright litigation is becoming a lucrative business model, thus raising questions about the clarity of the law. The court has found that Righthaven has no standing for a copyright infringement claim since they do not own the copyright in the first place. It also found that the damage claims are inflated since the article was republished for non-commercial purposes and was only posted for 40 days. Nevertheless, the copyright troll has been able to settle over 100 cases out of court with an unjustified claim. The question is raised: was this due to ambiguous copyright law about the ‘ownership’, or was it a result of being mislead by 17 U.S.C. §107 (4) in the way it framed the ‘portion’ factor relative to the overall work. It is also not entirely clear how important the copyright ownership has been in the courts decision, and the question remains as to whether the same decision would have been reached should the original copyright owner have initiated the lawsuit.
Case Comparisons
Courts judge the legitimacy of fair use within a specified framework. In summary, this framework includes the purpose and character of the work, the transformative nature of the work, the portion of the work used relative to the whole, and the effect of the use on the value of the original work. Within this framework the fair use statute may be interpreted with broad, flexible standards. Although the standards do not align perfectly between cases and opinions, it is likely that that the law would have been interpreted in the Righthaven v. Hoehn case in a similar manner by applying the conclusions drawn from the materials covered in class. For comparison:
As with OPG v. Diebold, Hoehn posted the op-ed pieces for the purpose of conversation and debate. Hoehn published the work on a forum for the benefit of an online community. Similarly, the Swarthmore students published the work for the public interest. Additionally, there was no evidence that Hoehn sought to profit from posting the materials on a website in which he had no commercial interest.
Although Hoehn’s post included the republishing of the original work in its entirety, the opinion outlined in the Google Library Print Project supports the validity of the ruling as fair use. The opinion paper references a similar case (Kelly v. Arriba Soft, 336 F.3d 811, 9th Cir. 2003) where the court ruled that copying a full work was transformative; thus protected under fair use. In that case, the purpose of the original images was artistic expression whereas the defendants act of indexing aimed to improve access to information on the Internet. Hoehn’s post was used as a means to initiate comments and discussion, hence falling within the categories specified by the fair use doctrine.
While the judge in the Righthaven v. Hoehn case indicated that the “original work does have some creative or editorial elements” these elements were not enough to justify the work as being purely creative. This interpretation aligns with the Perfect 10 v. Google case in which the court reiterated that creative works are given more protection against fair use than factual works.
Regarding the impact of Hoehn’s use on the value of the original work, there is no clear comparison with the week’s readings. In this matter the judge considered the duration of time (40 days) the work appeared on the website as having a de minimis effect on the original work.
Law, Technology and Society
As demonstrated by the Righthaven v. Hoehn case and the reading materials from the week, the domain of fair use continues to present exciting interpretive challenges within the context of technology and society. The interaction between individuals and corporations – and the technology these entities use to express ideas – creates a tense space for the law to determine what constitutes fair use. This is an acute representation of “the tussle”.
In an era defined by a preponderance of derivative work that includes mash-ups and remixes, the debate between what is transformative use and what is merely consumptive is one that will continue to be presented to the courts. Of central consideration is the idea-expression dichotomy. Will the value of ideas become diluted in a medium of expression that allows, and perhaps even encourages, original work to be copied, recombined and republished? Conversely, will the use of technology foster the emergence of expressions that ultimately benefit our collective ideas?
The legal response must balance the exclusive rights of copyright holders vis à vis the rights of creative expression, while also preserving the principles of advancement in arts and sciences.