sharon sanders
Editor-in-Chief & President
April 23, 2011
Republishing Entire Newspaper Story is Fair Use--Righthaven v. CIO
By Eric Goldman
Righthaven, LLC v. Jama, 2:10-cv-01322-JCM -LRL (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 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.
snip
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.
snip
At this rate, I think 505 fee-shifts are inevitable for Righthaven.
snip
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.
http://blog.ericgoldman.org/archives/2011/04/republishing_en.htm
Republishing Entire Newspaper Story is Fair Use--Righthaven v. CIO
By Eric Goldman
Righthaven, LLC v. Jama, 2:10-cv-01322-JCM -LRL (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 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.
snip
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.
snip
At this rate, I think 505 fee-shifts are inevitable for Righthaven.
snip
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.
http://blog.ericgoldman.org/archives/2011/04/republishing_en.htm