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Righthaven, a company that has garnered controversy by suing 250 different blogs and websites over newspaper copyrights, has lost its second case. The company lost a lawsuit on Friday in a ruling that, if upheld on appeal, could change the way that copyrighted newspaper articles get treated on the web-and not at all in the way Righthaven was hoping for.
Normally, “fair use” is the rule that justifies partial use of a copyrighted work. Fair use is what allows for quotation in a book review or news report-and it’s done countless times every day on the web. But in certain circumstances, judges have found 100 percent of a work to be fair use, and in a hearing on Friday, U.S. District Judge James Mahan found this was one of those circumstances, and that it was legal for an Oregon non-profit to post a full copy of a newspaper article from the Las Vegas Review-Journal on its website.
The judge based his decision on several factors, including that the defendant, the Oregon-based Center for Intercultural Organizing (CIO), which works with immigrants in Oregon, serves a completely different market than the R-J. Importantly, Mahan also took the opportunity to show he was unimpressed with Righthaven’s business model as a whole-buying up newspaper copyrights and suing mostly small websites with no warning at all. “Righthaven is not using the copyright the same way the R-J used it,” he said. “Righthaven is using it to support a lawsuit.” (So far, Righthaven’s main clients are the Las Vegas Review-Journal and the MediaNews chain.)
Mahan issued the ruling orally from the bench on Friday, and his decision to favor the non-profit was reported by the Las Vegas Sun. But Mahan asked defense lawyers to write up a dismissal order, and said he’ll sign it. While a written order detailing Mahan’s reasoning has not yet been submitted, the judge detailed some of his reasons from the bench.
This decision shows how Righthaven’s pursuit of these cases could backfire on the whole media industry. As I wrote last month,, newspaper industry lawyers can currently be sure that they’re within their rights to ask for a takedown of any full copy of a newspaper article posted online without their permission. Newspapers like The New York Times file takedown requests regularly. If this decision holds up on appeal-and it has a very good chance of doing so-that ability will be greatly diminished. Newspaper execs will have to consider what kind of person or organization made the full copy, and what for what purpose they made it. A competing commercial media company that engages in copying will still be way out of bounds-but we might find a web full of “fair uses” by non-profits and mom-and-pop bloggers.
This is the second lawsuit Righthaven has lost on “fair use” grounds, but the most recent loss is much more likely to have widespread effect than the first. That’s because the first finding of fair use was over a website that only quoted about 25 percent of an R-J story. Last month, Righthaven appealed that loss, and on Friday it indicated it will appeal this recent loss as well.