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Another Ouch for Righthaven – Republishing Entire Article is Fair Use … And More Fun!

May 12, 2011

This isn’t quite as fresh as I’d like, but then it’s law, which keeps not quite like Twinkies, but … nevermind.  More on Copyright Trolls as I ranted about, and took quiet joy at the exposure of their sham assignments, and now more nail-in-the-coffiny stuff for Righthaven, the trolls who snag bloggers who republish stuff from the Las Vegas Review-Journal et al.

In this round I actually laughed out loud at the poetic justice.  A Nevada District Court found the defendant’s immigration-issue-related-website’s republication of an entire article to be Fair Use.  The standard non-commercial, educational type factors were discussed, but the kicker is that the Court finds the work transformative because Righthaven is not in the news business … it’s in the litigation business.  That’s just awesome.

First, CIO’s use of the article is transformative. Although the former owner, the LVRJ, usedthe article for news-reporting, the court focuses on the current copyright owner’s use, which, at this juncture, has been shown to be nothing more than litigation-driven. Accordingly, CIO’s use of the article to educate the public is transformative and does not constitute a substitution of the plaintiff’s use. See Perfect 10, 508 F.3d at 1146

Honestly, I’m still laughing.  Eric Goldman gives an nice overview with link-backs to his own more sober rants on the subject, and makes this cogent assessment:

Normally, we’d have to wait to evaluate the impact of this ruling until we see how it fares on appeal. However, I believe Righthaven will not be around long enough to see the appellate decision. 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. At this point, I assume it will only take one or two 17 USC 505 fee-shifts to the defendant to make Righthaven’s economic model irreparably untenable. At this rate, I think 505 fee-shifts are inevitable for Righthaven.

The 505 refers to that pesky attorney-fees-as-costs-in-the-court’s-discretion statute that comes into play more often when people start irking judges.

But wait, there really is more.  Here’s TechDirt on the sad (albeit anecdotal) reality that the trolls are not dead yet. Even As Copyright Trolls’ Legal Strategy Appears To Be Failing, The Shakedowns Are Working | Techdirt. And yet another Not-Good-For-Righthaven ruling from Eric Goldman’s blog.

And finally, some techy trolly fun:  Wired has a fun find-out-if-you’re-a-BitTorrenter-on-US-Copyright-Group’s-hit list widget.  There’s some new films in play, and your IP may have bittorrented one of them.  Links to the EFF’s Copyright Trolls page there and in some of my links on the subject.

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