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Righthaven To Explain Why Reposting Isn't Fair Use

timothy posted more than 2 years ago | from the horatio-alger-villain dept.

The Media 169

Ponca City, We love you writes "TechDirt reports that a judge has asked Righthaven to explain why a non-profit organization reposting an entire article isn't fair use. The case involves the Center for Intercultural Organizing of Portland, Oregon, which was sued by Righthaven in August after an entire 33-paragraph Review-Journal story about Las Vegas immigrants was posted on the center's website, crediting the Review-Journal. The nonprofit says it was founded by Portland-area immigrants and refugees to combat widespread anti-Muslim sentiment after 9/11 and it works to strengthen immigrant and refugee communities through education, civic engagement, organizing and mobilization and does not charge subscription fees or derive any income from its website. The interesting thing is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up, suggesting that the Nevada judges are being inundated with hundreds of Righthaven cases, and that Righthaven has already lost once in a case that was found to be fair use so judges may want to set a precedent to clear their dockets."

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169 comments

"Because we say so" (1)

Even on Slashdot FOE (1870208) | more than 2 years ago | (#34335092)

That's how all the *AA groups rationalize this, right?

Re:"Because we say so" (3, Insightful)

Anonymous Coward | more than 2 years ago | (#34335152)

They posted the full story on their own site, that's not remotely close to fair-use. They should have done an editorial selecting various points and link back to the original. This is a blatant copyright violation, just as much as providing direct download of copyrighted music and video.

Re:"Because we say so" (5, Informative)

morgan_greywolf (835522) | more than 2 years ago | (#34335338)

While usually you'd be right, there are instances where reposting an entire article is considered fair use. For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

Re:"Because we say so" (0)

Anonymous Coward | more than 2 years ago | (#34335478)

I guess the original cases that begot the fair use doctrine never thought about "but their reposting of the article costs me page view and I lose advertising dollars" which is really what these Righthaven cases are about as the newspaper's content isn't really the "real" issue (although the lawyers will say that it is because there is no law protecting their advertising income).

Re:"Because we say so" (3, Interesting)

david_thornley (598059) | more than 2 years ago | (#34335544)

Really? I'd say that advertising exposure is of considerable importance to "fair use". One of the four main tests is whether it reduces the commercial value of the writing, and if I can read the whole article without any chance of seeing the ads that reduces the commercial value. Otherwise, copying anything off over-the-air television would be potentially fair use, since the only commercial value of (say) a football game is to expose the viewers to commercials.

Re:"Because we say so" (5, Insightful)

Anonymous Coward | more than 2 years ago | (#34335658)

And I would say the advertising revenue is of no concern whatsoever in this case, since the party losing the ad revenue is the newspaper, but... (wait for it...) they aren't the ones suing.
Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.
Now, they could possibly resell the article to other newspapers, but they aren't, because that isn't their business model. Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.

This is nothing but the newspaper equivalent of the MPAA/RIAA lawsuits, where you smack someone for infringement, extort them for a settlement because they can't afford to defend themselves in court, then move on to the next person. One of their lawsuits has already been dismissed and found to be baseless, how many settlements have been made on similar cases, that might have been thrown out had the defendants had the money to fight in court?

Re:"Because we say so" (3, Insightful)

91degrees (207121) | more than 2 years ago | (#34335880)

Interesting. So does Righthaven simply purchase a swathe of articles and hope that someone infringes, or do they wait for someone to infringe and then buy the article?

Either way, this does change things. If the former then their net profit from a typical article is negligible and the net loss is also extremely small considering the value they place on an article (this business model will not be viable if they pay a reasonable amount per article). If the latter then it seems bizarre to buy a property known to be damaged and then sue the person who damaged it, and this is essentially what they are doing.

Re:"Because we say so" (2, Informative)

Anonymous Coward | more than 2 years ago | (#34336030)

From my understanding, since it looks bad for the newspaper to be suing everyone for copying 3 lines from an article, they 'sell' the articles to Righthaven, in exchange for a license to use the article. This transfers the ownership of the copyright from the newspaper to Righthaven. Righthaven then sues any alleged infringers based on those copyrights. Since, however, they do not publish the work, and do not retain the ad revenue from said work, once the article is "Sold" to them, and they offer the license, their opportunity for revenue ceases to exist. They are not a publishing company, do not resell articles, and seem to exist only to sue people on behalf of the LVRJ (and a few others).

In this case, it isn't possible to "Link back to the copyright holder's website", since the article doesn't appear there, but at the site of one of their 'licensees'. That licensee MIGHT have claim to monetary damages stemming from loss of ad revenue, but even then its a hard thing to prove, since seeing an article, even a full one, on another site often leads people back to the source. Righthaven though, has no economic interest in the article itself, since they have already derived their money from its license.

Righthaven exists for the sole purpose of extorting money from alleged infringers, many of which cannot afford to defend themselves in court, and will pay a settlement, even if they believe they are right. The ad revenue lost to the paper from any article being copied elsewhere is very small, so recouping that ad revenue by halting infringers is not significant, and is obviously not their aim, since they could do just that with a simple C&D letter.

Re:"Because we say so" (1)

falsified (638041) | more than 2 years ago | (#34336020)

If this is true, then why did the judge agree that Righthaven even has standing in this case? What you're saying sounds accurate, but if it were the entire story, then there wouldn't be a lawsuit. There has to be more to it than this. The original article makes it sound like the Review-Journal is backing Righthaven up.

The whole arrangement here sounds...weird. But that's why we have a legal system, I guess.

Re:"Because we say so" (2, Insightful)

Jiro (131519) | more than 2 years ago | (#34336086)

Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.

I wouldn't think that matters. Wouldn't the payment they can get for licensing it back to the newspaper depend on the ad revenue it could get? If it can't get much ad revenue, they can't license it for much.

Of course the newspaper already paid them for *this particular* article, and they can't lose this preexisting payment, only future payments for future articles, but that would be like a situation where the newspaper did own the article and you tried to claim that the advertisers already paid them for the ads and they only lose revenue for future ads.

Re:"Because we say so" (2, Informative)

BBrown (70466) | more than 2 years ago | (#34335514)

I think you've got the law right, but I don't think that'll help prove fair use here.

Taking an article that is used to generate advertising revenue and reposting it somewhere that the author will not receive any revenue from goes firmly against the "commercial value of the original work" prong of the fair use defense.

Consider the equivalent: let's say I run a "non-profit" website, hypothetically just a blog where I generate no income, and I repeatedly copy articles from behind the NY Times paywall onto my site. That's copyright infringement and is substantially depriving the NY Times of their income for the articles. I believe I would lose a fair use defense there. I think the situation is the same if I copied NY Times articles that were not behind the paywall because they would be able to show that they were losing ad revenue.

Re:"Because we say so" (3, Informative)

Anonymous Coward | more than 2 years ago | (#34335536)

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case.

That's what the *AA type lobbyists want you to believe, but if you look at the copyright law, it includes Fair Use and says that Fair Use is a limitation on the scope of the copyright monopoly. I.e., a Fair Use is by definition not infringing.

Now you may find yourself on the receiving end of a copyright suit before a court clarifies what Fair Use means, but it is part of the law, same as the artificial monopoly that it limits.

Re:"Because we say so" (1)

mcgrew (92797) | more than 2 years ago | (#34335558)

So, is this [slashdot.org] fair use or copyright infringement?

Re:"Because we say so" (1)

falsified (638041) | more than 2 years ago | (#34336044)

I tried to slog through that. It certainly didn't convince me that I didn't need to seek out something else, so, fair use, I suppose. :)

Re:"Because we say so" (4, Informative)

uniquename72 (1169497) | more than 2 years ago | (#34335572)

if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

No, it's not. At all. See http://www.copyright.gov/fls/fl102.html. [copyright.gov] Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.

Re:"Because we say so" (2, Interesting)

blair1q (305137) | more than 2 years ago | (#34335730)

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Handing out paper copies on the street in front of the charity HQ is probably that.

But posting it to the Internet where it can be retrieved by anyone instead of going to the copyright owner's site? That is not fair use.

Re:"Because we say so" (1)

marcobat (1178909) | more than 2 years ago | (#34335986)

I'm not that sure, does the posting of the article to the non-profit website means that people that would have otherwise read it at the copyright owner site will go to the non-profit instead? Or does it mean that people that would have not been exposed to the article are going to be able to read it and learn something new? I think it would have been more polite to write one or two paragraphs about the article, post that in the non-profit site with a link to the full one, but i'm not sure that impolite is the same as breaking copyright law.

Re:"Because we say so" (1)

falsified (638041) | more than 2 years ago | (#34335990)

The fact that it's an affirmative defense is what makes it so weird that the judge raised the issue. This would be like a judge yelling "ENTRAPMENT!!" during a trial.

In this case, it may not have been fair use, which is unfortunate because this Righthaven group sounds like a bunch of assholes. By posting the entire article, the Center for Intercultural Organizing may not have received any additional revenue, but they likely did deprive Righthaven of ad revenue, especially if CIO is ranked higher than Righthaven in search results. I'd try it myself but I can't find anywhere that actually mentions the name of the original article.

Re:"Because we say so" (2, Informative)

tweak13 (1171627) | more than 2 years ago | (#34336366)

Maybe the judge just thinks the lawyer that righthaven sent is an asshole, and he wants him to do as much work as possible. Judges basically get to do whatever they want in their own courtroom anyway. NPR had a story [npr.org] I heard yesterday where the judge refused to accept a motion to dismiss a case... from the prosecution. I didn't even know such a thing would be possible, but apparently judges really do have almost unlimited power in their little domains.

Re:"Because we say so" (4, Informative)

tverbeek (457094) | more than 2 years ago | (#34336218)

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.
Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

Saying that "fair use is not a law" is a strange statement, since it is codified in the Copyright Act of 1976. It spells out a four-part test, which includes "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", which this example flunks pretty badly.

Re:"Because we say so" (0)

Anonymous Coward | more than 2 years ago | (#34335586)

I agree that in general posting a whole article shouldn't be fair use, so I was quite surprised at this judges expectation they show it wasn't fair use. I could see posting an article that had been taken down as possibly being fair use; for example if they were demonstrate how an article was viewed as anti-Muslim and the original poster decided to take it down and claim they had never made such statements. While you could do editorial selecting and in my opinion should, I could see also posting the original on the grounds of letting the reader see the original and if the quotes were taken out of context.

Doesn't the way back machine from the Internet Archive make whole copies available? Don't the operate under fair use? So I think there is some precedent for whole copies. In general, it seems like a very limited use.

Re:"Because we say so" (2, Interesting)

Anonymous Brave Guy (457657) | more than 2 years ago | (#34336210)

Indeed. The summary seems to suggest that just because it's a non-profit organisation doing the reposting and they gave some sort of credit, they have carte blanche to completely ignore copyright. It's surprising that any judge would behave this way, so I'm thinking there is more to this story than we have heard so far.

Re:"Because we say so" (2, Funny)

An ominous Cow art (320322) | more than 2 years ago | (#34335190)

Nice riposte.

Re:"Because we say so" (5, Funny)

paiute (550198) | more than 2 years ago | (#34335254)

Previous poster is correct. It is not fair use, and Righthaven will win. The judge will award them all of the non-profit's profits for the next year.

Re:"Because we say so" (2, Informative)

blair1q (305137) | more than 2 years ago | (#34335778)

For some "non-profits", that could be a considerable sum [charitynavigator.org] .

Re:"Because we say so" (2, Informative)

TheLink (130905) | more than 2 years ago | (#34335938)

The page in your link shows CEO salaries, not organization profits.

Huh???? (1, Insightful)

Anonymous Coward | more than 2 years ago | (#34335118)

Ok, I understand reposting excerpts, I understand reposting articles with the author's permission. But just reposting full articles while giving credit (somewhere) to the source is fair use?

I don't get it..... doesn't it just mean that people can copy entire websites willy-nilly and as long as they provide a buried link to the original source, its a-ok?

Re:Huh???? (1)

Aladrin (926209) | more than 2 years ago | (#34335234)

And don't make any money from it... Yeah, that seems to be what the judge is saying.

Amazing.

Maybe next the judge will say it's okay to distribute music as long as you don't make money, too.

Re:Huh???? (1)

boarder8925 (714555) | more than 2 years ago | (#34335334)

Maybe next the judge will say it's okay to distribute music as long as you don't make money, too.

We can only hope.

Re:Huh???? (1)

Tr3vin (1220548) | more than 2 years ago | (#34335548)

Then maybe the judge will allow for the publishing of credit card / social security info. Free to use as long as you don't make money. Spend other people's money all you want, though. It is just data, after all.

Re:Huh???? (1)

sabs (255763) | more than 2 years ago | (#34335336)

1) post article you own copyright to anonymously on Slashdot
2) sue slashdot for copyright infringment
3) settle out of court
4) PROFIT

Re:Huh???? (1)

SatanicPuppy (611928) | more than 2 years ago | (#34336216)

If slashdot was stupid enough to reprint the full text of an article instead of simply linking to it, then they'd deserve to be sued.

Instead they post links to blogs that write crappy opinions off of original articles, which they then link at the bottom of their page (sometimes).

I honestly have no sympathy here. The internet works by hyperlinking. Anything else is an unfair attempt to drive traffic using someone elses content.

Re:Huh???? (2, Informative)

budgenator (254554) | more than 2 years ago | (#34335896)

Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html [copyright.gov]

My view. (3, Informative)

OverlordQ (264228) | more than 2 years ago | (#34335124)

Let's look:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The center isn't for-profit, so they're likely ok here.

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Also hard to claim fair use when it's the entire 33 paragraphs.

the effect of the use upon the potential market for or value of the copyrighted work.

Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).

Re:My view. (3, Informative)

Attila Dimedici (1036002) | more than 2 years ago | (#34335216)

What you are missing is that Righthaven is the plaintiff in this case and appears to be a copyright troll (that is, they have sued lots of people for copyright infringement, many times in cases that were blatantly fair use). The judge is basically saying, "I don't like you, you have wasted the court's time on numerous occassions, so I am going to force you to make the case that this use in some way damaged your revenue more than it enhanced it."

5 word summary: (1)

hey! (33014) | more than 2 years ago | (#34335524)

"The Boy Who Cried Wolf"

Re:5 word summary: (1)

Minwee (522556) | more than 2 years ago | (#34336244)

"The Boy Who Cried Wolf"

Or, if you prefer the story in a more visual form, Wolf! [oglaf.com] .

(NSFW)

Re:My view. (1, Informative)

Anonymous Coward | more than 2 years ago | (#34336414)

What you are missing is that Righthaven is the plaintiff

That shouldn't matter. Copying an entire article doesn't meet the criteria for fair-use. Doesn't matter if it was SCO, MS, Apple, or Righthaven.

Re:My view. [4th test] (2, Informative)

Thagg (9904) | more than 2 years ago | (#34335266)

There are four tests for fair use. The fourth one is "Is the use transformative in any way?" For example, a parody is usually seen as fair use, because it transforms the original.

Re:My view. [4th test] (1)

OakDragon (885217) | more than 2 years ago | (#34335452)

They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!

Re:My view. [4th test] (1)

Foobar of Borg (690622) | more than 2 years ago | (#34335844)

They will be accused of infringement on three counts : infringement by thought, infringement by word, infringement by deed, infringement by action - *FOUR* counts!

"When I downloaded those files, I didn't expect a kind of Spanish Inquisition." - Thomas-Rasset

Re:My view. (3, Insightful)

canajin56 (660655) | more than 2 years ago | (#34335346)

Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).

However, they are not being sued by the LVRJ, they are being sued by a puppet corporation that LVRJ sold the article to in exchange for a license to keep using it in the LVRJ. So, since their puppet corporation is not publishing it and is not making any money off of it except by suing, that will be a hard sell. If anything, since the only way this puppet corporation makes money is by being sold articles so it can attack, republishing LVRJ increases their revenues, so the effect is "positive" ;) Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. But since they aren't being sued by the LVRJ...

Re:My view. (2, Insightful)

Nadaka (224565) | more than 2 years ago | (#34335512)

... Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. ...

What the hell? If you have permission, you have permission and it isn't a copyright violation.

Re:My view. (2, Informative)

canajin56 (660655) | more than 2 years ago | (#34335636)

My subordinate clauses got tangled. "without permission, even with a citation".

Re:My view. (1)

RobertM1968 (951074) | more than 2 years ago | (#34336160)

My subordinate clauses got tangled. (Not that I think it's right to republish entire articles) "without permission, even with a citation".

Fortunately the law is not based on what you think it right or wrong... ;-)

Re:My view. (1)

zzatz (965857) | more than 2 years ago | (#34335350)

Do you really think that a local newspaper lost sales to an advocacy group in another city? People in Las Vegas chose to wait for a later copy of the article somewhere else, instead of the earlier version surrounded by other articles of local interest?

Context matters. It is possible that LVRJ lost no sales at all.

Re:My view. (2, Interesting)

mcgrew (92797) | more than 2 years ago | (#34335816)

Odd, the local newspaper (Springfield State Journal-Register) uses a GPL license for stories that aren't copyrighted by the AP or other paid sources.

WTF is Righthaven (5, Informative)

slodan (1134883) | more than 2 years ago | (#34335132)

If you are like me, you thought, "What the fuck is Righthaven?"

Righthaven LLC [is] the Las Vegas “technology company” that has been filing copyright infringement lawsuits in ... Nevada against numerous unsuspecting website owners (almost always without notice) for copyright infringement of news articles originally published in the Las Vegas Review Journal.

Via http://www.righthavenlawsuits.com/ [righthavenlawsuits.com] .

Re:WTF is Righthaven (2, Insightful)

KublaiKhan (522918) | more than 2 years ago | (#34335192)

It's a parasite.

The company creates no value, and acts to remove value from the marketplace via litigation. While the ostensible purpose is to protect the interests of the LV Review-Journal, I question whether a newspaper--no matter how well or poorly circulated--would need an entire company to protect its intellectual property; last I checked, that was usually handled by the newspapers' legal department.

So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and all other similar companies that exist only to parasitize others' work were dissolved.

Means of dissolution (1)

zooblethorpe (686757) | more than 2 years ago | (#34335518)

So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and all other similar companies that exist only to parasitize others' work were dissolved.

Preferably using a strong acid.

(Only partly joking.)

Cheers,

Re:Means of dissolution (1)

Monkeedude1212 (1560403) | more than 2 years ago | (#34335700)

That won't work. It's got concentrated acid for blood. A good defense mechanism, you don't dare kill it.

Re:Means of dissolution (2, Funny)

Skidborg (1585365) | more than 2 years ago | (#34335806)

So simply dunk it in baking soda and watch the fireworks.

Re:WTF is Righthaven (3, Insightful)

Aladrin (926209) | more than 2 years ago | (#34335252)

Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

Re:WTF is Righthaven (0)

Anonymous Coward | more than 2 years ago | (#34335324)

Since when has news been imaginary property?

Re:WTF is Righthaven (1)

rakuen (1230808) | more than 2 years ago | (#34335356)

They could issue a C&D instead of immediately jumping to the lawsuit stage. Let the people know their use of the articles from the Las Vegas Review Journal is not appreciated, and give them a chance to remove it in good faith before pursuing litigation. It would be a nice thing to do, and would probably prevent a lot of the cases on the docket.

Of course, they're probably not doing this, which means you could make a decent conclusion that they're simply out for money.

Re:WTF is Righthaven (2, Informative)

shentino (1139071) | more than 2 years ago | (#34335872)

But if they did that they wouldn't be able to exploit the baseless settlement gravy train.

Re:WTF is Righthaven (2, Interesting)

Rary (566291) | more than 2 years ago | (#34335370)

Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

You assume that the defendants are always guilty. Given that Righthaven has already lost one of these lawsuits because the act in question was a valid fair use situation, then yes, "unsuspecting" is applicable.

Re:WTF is Righthaven (2, Insightful)

Anonymous Coward | more than 2 years ago | (#34335758)

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

Re:WTF is Righthaven (1)

mpe (36238) | more than 2 years ago | (#34335898)

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

It sounds like the judge is saying something akin to "I can't see that you have any case at all. This is your last chance to convince me that you are not just wasting my (and the defendant's) time."

So why not just provide a link? (2, Interesting)

omnibit (1737004) | more than 2 years ago | (#34335134)

If the non-profit organization liked the story, why wouldn't they simply acknowledge Righthaven by way of summary and then link back to the source. Copying verbatim, even with acknowledgement, denies Righthaven hits to its website that otherwise would have been forthcoming.

What is fair use? IANAL but I would hazard a guess that entire reproductions without permission aren't fair.

Re:So why not just provide a link? (1)

lostmongoose (1094523) | more than 2 years ago | (#34335508)

Righthaven *doesn't publish anything* they only buy the articles from the authors/owners and then sue people for using them.

Re:So why not just provide a link? (2, Informative)

canajin56 (660655) | more than 2 years ago | (#34335610)

They can't link to Righthaven because Righthaven doesn't print the article. The Las Vegas Review Journal does. It's bad press when a newspaper sues a reader for reprinting a single quote from the paper, so they "sell" their publications rights to a puppet company they run, and that sues people. Yes, in this instance it's the entire article, but they are scattershotting lawsuits at any matches. They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they would sue Slashdot in a heartbeat ;)

Re:So why not just provide a link? (1, Funny)

Anonymous Coward | more than 2 years ago | (#34335980)

They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they would sue Slashdot in a heartbeat ;)

Since when have Slashdot summaries been remotely accurate, let alone actually contain text from the article?

This is black letter law (1, Informative)

Anonymous Coward | more than 2 years ago | (#34335172)

I know this is slashdot and any attempt to enforce copyright law must be evil and wrong, but this isn't even a hard case, its more or less black letter law.

Fair use lets you, among other things, take representative excerpts of a larger work for scholarly or editorial purposes. Basically you're allowed to quote stuff in order to talk about it in a rational manner.

There's no standard under which you're allowed to copy an entire work and call it fair use.

Whether or not you make money as a result of your copying has no bearing on its legality, its only a function of damages. In other words, being a non profit doesn't mean that copyright law doesn't apply to you.

Re:This is black letter law (1)

Aladrin (926209) | more than 2 years ago | (#34335270)

Actually, I think you'll find the summary and comments are mainly about how clueless the judge is about 'fair use' and that just mentioning it was amazing.

Re:This is black letter law (0)

Anonymous Coward | more than 2 years ago | (#34335908)

Wow. You assume you are more qualified than a judge on the matter based on an article of a questionable level of detail an authorship and some comments.

I bet you think about yourself when you masturbate.

Re:This is black letter law (1)

falsified (638041) | more than 2 years ago | (#34336088)

It kind of sounds like this judge is sick of seeing this plantiff in court and wants to do whatever he can to trip them up.

But unless there's some precedent out there that negates this, a lay reading of fair use makes it sound like this reprinting of the article is NOT fair use.

Re:This is black letter law (5, Insightful)

Attila Dimedici (1036002) | more than 2 years ago | (#34335850)

Ordinarily, I would agree with you. However, Righthaven is a company that exists for the sole purpose of filing copyright lawsuits against anyone who uses any part of an article published by the Las Vegas Review Journal. Righthaven does not publish anything. As far as I can tell, they don't even sell the rights to publish anything. What you miss is that since the organization being sued is a non-profit, Righthaven must show how their publishing of the article reduces Righthaven's ability to make money from the article. Since Righthaven doesn't make money from the article (except from copyright infringement lawsuits), this will be a hard sell in court.

Mod parent up. (1)

TheLink (130905) | more than 2 years ago | (#34336038)

More people copying the articles could actually increase Righthaven's revenue :).

Righthaven makes more money if:
1) More people copied LVRJ articles
2) Righthaven successfully sues them (e.g. judge allows them to win).

Because that's the deffenition of infringing use (0)

Anonymous Coward | more than 2 years ago | (#34335206)

Distributing an enteire work without alteration or permission is exactely what copyright is designed to prevent.

The concept behind copyright is to provide artificial scaricty for creative works by giving the creator sole rights to the distribution and reproduction of their work. Limitations such as fair user were then added so that other could for example: quote a portion of your work, produce a parody of your work, or reproduce a similar work for educational purposes (like an art student painting a reproduction moana lisa).

Distributing copies of a work in violation of copyright is _not_ what fair use is for regardless of whether or not you make a profit, or are an educational institution. This is why for example photocopying the harry potter novels and posting the resulting PDF on a torrent site is a violation of copyright.

Fuck Writers (1)

mgabrys_sf (951552) | more than 2 years ago | (#34335236)

Ya writers suck - always wanting money like they work for a living or sumtin' fuck writers - fuck them up the ass? - Wait, is this Digg? (shit wrong site).

Re:Fuck Writers (1)

boarder8925 (714555) | more than 2 years ago | (#34335360)

Well, your comment definitely sounds appropriate for digg, though I think it'd fit better on YouTube.

Quoting for the purpose of refuting (2, Interesting)

Compaqt (1758360) | more than 2 years ago | (#34335296)

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

Yet copyright "law" can be and is used to shut down debate.

Re:Quoting for the purpose of refuting (1)

Rary (566291) | more than 2 years ago | (#34335474)

I'd like to see citations regarding this. It seems to me that as long as you're not quoting the work in its entirety, then the resulting work would be transformative and fair use. Is it really necessary to quote every single sentence in order to refute it?

Re:Quoting for the purpose of refuting (2, Funny)

blair1q (305137) | more than 2 years ago | (#34335822)

Is it really necessary to quote every single sentence in order to refute it?

Only in an academic sense. Generally one picks out the most egregious portions and refutes those. Then one gets accused of hiding from the facts by taking quotes out of context. Then one slings mud, then one ducks mud slung.

You know. It's like the Internet.

Re:Quoting for the purpose of refuting (2, Funny)

Hork_Monkey (580728) | more than 2 years ago | (#34335942)

He can't provide evidence of it because that would be a copyright violation.

Re:Quoting for the purpose of refuting (2, Insightful)

Gravitron 5000 (1621683) | more than 2 years ago | (#34335528)

If you refute with humour, than you have a fair chance at claiming that your work is parody protected (Sorry, I couldn't resist the bad pun)

Re:Quoting for the purpose of refuting (1, Insightful)

Anonymous Coward | more than 2 years ago | (#34335734)

The parent post claims that it's imposible to refute a work within the bound of copyright law. As evedenced by this statment.

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work.

(Slashdot, 11/24/2010, line 1-2)

The specific claim being made is that the best refutation would be a line by line rebuttal to a work quoted in its enteierty or near enough to violate copyright protection (line 3-5)

However I would argue that in that case you would quote the most important parts, and paraphraise the rest. Then you provide citations linking your quotes and paraphraised sections to the original. As A demonstration I have provided a quick example of the method in question in the form of this post. Since I have clearly quoted only a small portion of the original work, and have provided resonable citations I expect the resulting work of my own creation would pass for fair use were it to be questioned in court. This clearly contradicts the theis of the original post and inperticular the closing remark Which incidently is not itself substatioated in the original work:

Yet copyright "law" can be and is used to shut down debate

(line 5)

Re:Quoting for the purpose of refuting (1)

HikingStick (878216) | more than 2 years ago | (#34335742)

Actually, my understanding of US copyright law (and no, IANAL) is that such use (dissecting whole chapters for commentary or discourse) would be considered fair use if not in a for-profit setting (e.g., publishing your commentary alongside the complete text of the target work). Fair use is not dead in the United States, but it is has moved from a general assumption to the status of requiring (especially at secondary schools, colleges, and universities) CYA policies, disclosure documents, and (imo) unnecessary licensing agreements with many content providers.

Taking the risk of going too far off on a tangent, I believe current trends in copyright law stem from the fact that corporations, rather than artists, control more and more copyrighted content. While corporations may be treated as legal persons under the law (granting them the rights of ownership, contract negotiation, and redress of grievances), they clearly lack something that is possible amongst true persons: the ability to take in stimuli and then re-present it in a transformed fashion. That, my friends, is why there is such a battle of ideologies surrounding copyright. Classical composers were known for listening to the earlier masters, or their peers, and then composing works in the style of the original artist. Similarly, some "stole" riffs and melodies directly from other works, but transformed them into their own unique creations. In our age, you have a group like Men at Work that lost a lawsuit for using a flute riff that paralleled the tune used in association with the song/nursery rhyme "Kookaburra", written and copyrighted in 1932, and renrewed in 1989 (by Larrikin Music). Current corporate structures and legal systems do not see such use as valid and, unfortunatly, that directly impedes the expansion and development of other creative output. While my example focused on music, the same can be said for most any media type: just think of all the buddy comedies or action stories churned out by Hollywood since that genre was developed. Yet, for some reason, those studios did not waste their time trying to shut down those smililar stories, even if they contained segments that paralleled the original, because they realized that the complete work is what warranted copyright protection, not the concepts or themes. Isn't a riff nothing more than a musical theme?

Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.

Re:Quoting for the purpose of refuting (2, Informative)

Attila Dimedici (1036002) | more than 2 years ago | (#34336008)

Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.

Actually, the evidence available suggests that exactly that is the case. The woman who wrote "Kookabura" was still alive (and still held copyright)when the Men at Work song came out. Before she died she gave the copyright to a nonprofit organization (I don't remember the name of te organization--something like the Australian National Library). That organization sold the rights to the song as part of a fund raiser.

Re:Quoting for the purpose of refuting (0, Redundant)

blair1q (305137) | more than 2 years ago | (#34335804)

But you can do that. You're not reprinting their work, you're transforming it.

I disagree, sorry (0, Redundant)

Benfea (1365845) | more than 2 years ago | (#34335924)

You can quote up to 10% of an article to make a point. More than that, and you've crossed the line into copyright infringement. Furthermore, if you are refuting Al Gore or Sarah Palin, chances are you're going to be refuting something they said, which is a matter of public record. So if you repost what the public figure said rather than repost huge chunks of an article written about what they said, you're pretty much in the clear. If you are going off of some book they wrote rather than something they said, then you should have no problem citing the book (paraphrasing as necessary) without directly copying any text from the book.

While there is a lot about copyright law that really torques my 'nards, I really don't see this as a problem. The law gives us enough wriggle room to cite for refutation (or agreement for that matter) as needed.

Re:I disagree, sorry (2, Informative)

wiredlogic (135348) | more than 2 years ago | (#34336076)

Who came up with this magic 10%? The law says "substantial portions". It's up to a judge to decide what that mean on a case by case basis.

Re:I disagree, sorry (0)

Anonymous Coward | more than 2 years ago | (#34336228)

How about Twitt?

10% of 160 characters just doesn't do it for me...

Re:I disagree, sorry (0)

Anonymous Coward | more than 2 years ago | (#34336334)

Sorry, the courts have determined that you can quote up to 100% of the article to make a point, if you are doing exactly what the original poster wished you could do. You may have to explain in court why you couldn't remove some of the original work and still make your commentary, but if the judge agrees with you, it's fair use. There is no '10% rule' as you say.

Re:Quoting for the purpose of refuting (0, Redundant)

Abcd1234 (188840) | more than 2 years ago | (#34336064)

You can't quote to refute a work.

Uhh... hell yes you can. That falls firmly under the journalism and scholarship fair use exemptions.

Where the fuck did you get this crazy idea?

You CAN quote to refute a work (3, Informative)

Infonaut (96956) | more than 2 years ago | (#34336120)

"You can't quote to refute a work."

Where did you get that idea? Comment and Criticism [stanford.edu] is at the heart of Fair Use Doctrine.

As for the most effective means of refutation, line by line or paragraph-by-paragraph refutation of a work of any length might be effective in the abstract, but I doubt most people would read it. In practice it is more effective to create a general framework of critique, and use selective quotes to drive your point home. This is likely why there hasn't been a hue and cry about the stifling inability in our culture to engage in argument.

I also don't understand why you put law in quotes. It is law, whether you understand it or not.

Re:Quoting for the purpose of refuting (0)

Anonymous Coward | more than 2 years ago | (#34336174)

Stop modding this up. Start modding up the replies that prove he is wrong.

Re:Quoting for the purpose of refuting (1)

Minwee (522556) | more than 2 years ago | (#34336278)

You can't quote to refute a work.

I'm going to have to ask for some corroboration from a legal authority on this statement, as I find it difficult to reconcile with my understanding of copyright law.

Or, in simpler words, Torts or Get The Frack Out.

Re:Quoting for the purpose of refuting (1)

MarkGriz (520778) | more than 2 years ago | (#34336358)

"Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar."

Hopefully we are allowed to use logical OR, rather than exclusive OR

Re:Quoting for the purpose of refuting (2, Funny)

guyminuslife (1349809) | more than 2 years ago | (#34336364)

One of the stupidest aspects of copyright "law" is this:

You can't quote to refute a work. Say you think Al Gore's science is wrong, Sarah Palin doesn't know what she's talking about, or Cheney's a liar.

Yes you can.

The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

No, it isn't.

Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

Hardly.

Yet copyright "law" can be and is used to shut down debate.

Not really.

To save you the bother of going to TechDirt (0)

Anonymous Coward | more than 2 years ago | (#34335590)

Here is the entire article:

In yet another sign that things may not be looking so good for copyright lawsuit machine Righthaven, a judge has asked Righthaven to explain why a non-profit organization reposting an article isn't fair use. There are two reasons why this is interesting. First, to date, most of the "fair use" claims in Righthaven cases have involved sites posting snippets of articles, rather than the full articles (Righthaven has recently said it will only sue for full articles going forward). However, this is a full article, and the judge is still considering whether or not it's fair use. As we've noted in the past, there are certainly cases where using the entirety of a work still constitutes fair use, and this may be one of them.

The other reason why this is interesting is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up. At the very least, this suggests that the various Nevada judges being inundated with hundreds of Righthaven cases are at least aware of the other cases, what defenses are being offered, and what the other judges are saying -- since one Righthaven case has already been found to be fair use.

Of course, if the court finds that there are situations in which posting the entire article can be seen as fair use, it may be game over for Righthaven (and some others as well). Considering how many of the sites sued were small, non-profit sites where the use was clearly not intended to compete or to take money away from Righthaven, if those conditions satisfy a fair use ruling, Righthaven may watch a bunch of these cases fall like dominoes. Of course, that would be quite fitting, in that in bringing nearly 200 lawsuits against various sites, the end result could be that various sites receive clearer guidelines stating that they actually can copy entire articles onto their websites, given certain other conditions.

What does TechDirt think of people lifting the entire article without providing a link?

Issue with linking to an ever-changing site... (2, Insightful)

eepok (545733) | more than 2 years ago | (#34335660)

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

It reminds of the the "out-of-print" book issue. Writer Bob writes a book. It's published and distributed. Demand for the book wanes, Bob dies, and the publisher pulps surplus stock. If someone wants to buy the book, s/he has to dig through used book stores or the like and, if the book is ever found, pay a premium for a book that is no longer in print. The reader just wants the content, not a collector's item... and yet it's not exactly legal to acquire the content without purchasing the rights from the publisher.

Re:Issue with linking to an ever-changing site... (1)

blair1q (305137) | more than 2 years ago | (#34335846)

That's the problem. The solution is to write your own article, or to maintain your links.

Re:Issue with linking to an ever-changing site... (2, Insightful)

Todd Knarr (15451) | more than 2 years ago | (#34335930)

The problem is you can't maintain links. The material the link points to can change or be removed entirely, which creates a problem. If I criticize someone's positions or evidence in their article, they can change the article and smear me for having lied about what they said and I can't prove a thing. The only way I can prove they said what I say they said is to make my own copy of their article, one that they can't change, and serve it up off my own servers alongside my commentary on it. And I may need to show the entirety as a defense against claims that I'm cherry-picking statements of theirs and taking them out of context. My only defense against that is to show enough of the article to show that no I'm not taking isolated statements out of context, and that may well be the entirety of the article.

Re:Issue with linking to an ever-changing site... (2, Interesting)

el3mentary (1349033) | more than 2 years ago | (#34336398)

You could always host a full copy locally just in case the link does die/the article is purged for some reason and only publish it in that case. Loss of revenue would be invalid in that case as they wouldn't be generating of course this only works in the case of NPO's

Re:Issue with linking to an ever-changing site... (1)

PeterBrett (780946) | more than 2 years ago | (#34336066)

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

That's the problem. The solution is to write your own article, or to maintain your links.

That's not a "solution", that's a crappy and unnecessarily labour-intensive workaround. Idiocy like this is why most of the 20th century's literary, musical and cinematographic legacy is disappearing down the toilet of history -- fear of brokenly restrictive copyright law makes people unwilling and, indeed, unable to properly preserve cultural artefacts by copying and sharing them after the original creators and/or publishers have died and/or lost interest in the works.

The real solution is to fix bloody copyright.

Re:Issue with linking to an ever-changing site... (2, Insightful)

pz (113803) | more than 2 years ago | (#34336092)

That's the problem. The solution is to write your own article, or to maintain your links.

Or, purchase rights to the work. The work is copyrighted, and you want to copy it. It's really quite simple. The owner will, very likely, sell you rights, at least if they are a publishing house.

I do that all the time for images that I use in my business-related presentations. For most copyrighted work that is owned by a company of some sort, it is relatively straightforward to approach their business development people and strike a deal. Usually this is as easy as finding the right page on their web site, making a selection of content and rights levels, and typing in your credit card number. At the worst, it's making a single phone call. No, it isn't free, and no, I don't think it should be. But most copyrighted work isn't the Obama HOPE portrait or a Pulitzer winning investigative essay, and so the prices are reasonable, at least in my experience.

Re:Issue with linking to an ever-changing site... (1)

sabt-pestnu (967671) | more than 2 years ago | (#34336102)

and yet it's not exactly legal to acquire the content without purchasing the rights from the copyright holder.

Clarified that for you. Authors have been retaining copyright more and more often these last 30 years.

Publishers are given rights to copy and distribute. If they are given exclusive rights to copy and distribute, and the (copyright holder) lets you copy/distribute, the publisher then has a beef with the copyright holder, not you.

"To clear their docket" (c) (2, Interesting)

roguegramma (982660) | more than 2 years ago | (#34336232)

Strange that a judge has to decide the merits of a case based on the length of their queue.

I guess it would make sense to dismiss the case for lack of enough public interest, but to set a precedent?

In my opinion, reposting is violating the rights of the copyright owner to pull the story(or other content, programs come to mind) from their website, for example to charge money for it.

I think reposting without a financial interest might still constitute fair use, as long as either the copyright owner is still publishing the information for free, or as long as you comply with requests from the copyright owner to remove the content from your site. But I guess that's too much of a commonsense position for a court.

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