Righthaven Copyright Suits and the Fair Use Defense

In a major setback to Righthaven, LLC in one of its copyright infringement cases, a federal judge recently ruled that defendants Kayse Jama and the Center for Intercultural Organizing (“CIO”) engaged in fair use as a matter of law when they posted an article from the Las Vegas Review-Journal (“LVRJ”) that was copyrighted by Righthaven (For background on Righthaven and its business model, see “Copyright Infringement in the Digital Age: Is Righthaven Using the Right Solution?”).
Using the four-factor legal standard for fair use (purpose and character of the use; nature of the copyrighted work; amount/substantiality of the portion used in relationship to the work as a whole; and effect of the use upon the potential market), Judge James Mahan ruled that Jama and CIO met all four criteria necessary to constitute fair use. One of the most surprising aspects of this ruling involves the third factor. Even though the defendants copied the article in its entirety, the judge ruled that the amount was reasonable. Mahan reasoned that because the purpose of the use was to educate the public, and the work was factual, “it would have been impracticable for defendants to cut out portions of the article or edit the article down.”

Regarding the fourth factor of fair use, the opinion also questions whether Righthaven, which is not itself a newspaper and is merely using the copyright to file infringement lawsuites, can claim LVRJ’s market as its own.

It remains to be seen how this ruling will affect the numerous other cases that Righthaven has filed against bloggers who have posted LVRJ content, but if the posting of an entire article can be considered fair use, and if Righthaven does not have an actual market to base its claims upon, this could jeopardize its other claims of copyright infringement.

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