Can you REALLY copy an ENTIRE news article online and claim fair use?

[Originally published at www.proftonyaevans.com]

Yes. Really. Well, sometimes. Maybe. (How’s that for an answer?) The answer is sometimes yes, at least according to a recent decision in a copyright infringement case between purported copyright “troll” Righthaven and its latest defendant, Wayne Hoehn.

Hoehn is a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, owned by Stephens Media. Righthaven is a Las Vegas-based company co-owned by its CEO and founder Steve Gibson and Stevens Media, owner of approximately 70 media outlets, including the Las Vegas Review-Journal.

What’s a copyright troll?

A copyright troll (a term borrowed from the patent side of intellectual property) is a person or, more commonly, a company that buys rights to copyrighted works and then actively looks for allegedly infringing activity so it can file a law suit. This type of systematic filing is usually done without issuing a cease & desist letter (which commonly precedes most infringement cases although C&Ds are not required by law). The cost to file a lawsuit is relatively low. And with the statutory damage awards available in copyright infringement suits (anywhere from $200 – $150,000 per infringement), the potential gain — either with a successful suit or settlement — can be considerable.

Wired.com reports that Righthaven has sued more than 200 websites, bloggers and commentators for copyright infringement. More than 100 of these have settled out of court. So evidently instead of taking a more traditional route to help its client sell more newspapers, Stevens Media and its partner Gibson have found a new revenue center — lawsuits; thereby “monetizing” news content on the backend, as explained by David Kravets in a 2010 Wired.com article about Righthaven’s legal tactics. Recently, however, Righthaven has not been as successful and has lost three cases that identified the defendant’s use as fair.

Copyright in a nutshell

Copyright protects a literary or artistic work that’s fixed in a tangible medium (ex: when a song is recorded or a news article is written). Once the creative work is “fixed” then, presumably it is capable of being reproduced, adapted, distributed, or performed or displayed publicly. This litany of uses make up the “bundle of rights” that a copyright owner holds. Therefore anyone who uses a copyrighted work without right, permission or defense will be liable for copyright infringement.

In this case, Hoehn defended his unauthorized use on fair use grounds because use for news reporting, comment, criticism and so forth are permitted uses. But even when used in a way otherwise permitted under copyright law, use of the entire work is more likely than not excused. And that’s why this particular case is getting such attention. The federal district judge in this case, held that because Hoehn’s use did not harm the market for the newspaper’s publication of the article, Hoehn’s unauthorized use was deemed fair and therefore excused. Potential harm to the copyrighted work’s potential market is one of four factors a court considers in analyzing a fair use defense. Unfortunately, this opinion is currently “unreported”. This means that it is not readily searchable in legal databases or bound reporters generally relied on by judges and their clerks to find precedent for other cases. Because of this,at least one group, Harvard’s Citizen Media Law Project, is pressing Judge Phillip Pro to publish his opinion.

So is the case on fair use closed?

This is an easier question to answer; NO. Beware of relying too heavily on this case as a wholesale endorsement of the unauthorized use of entire news articles (or any other copyrighted work) in your blog. Fair use is evaluated on a case-by-case basis. And the facts of this case suggest that not only did the judge consider market harm, he also considered the actions and arguably questionable ethics of the Righthaven (it’s reputation certainly precedes it in court these days) and Righthaven’s lack of standing to sue.

Nonetheless, this case presents interesting questions about how copyright law will be applied to an ever-evolving cut-n-paste technological world. In this world of micro-blogging, instant access to — and dissemination of — information, and user-generated content based on existing copyrighted material it will be interesting to see how courts respond. Will courts respond by recognizing fair uses where infringement once lived? Or will judges render decisions like this one and seek to protect the “creative space” content-providers need — and technology and consumer expectations demand — to create and share creative content in the 21st century? Only time will tell.

© 2011 Tonya M. Evans. This post may be “shared socially” and republished provided this post is copied in its entirety and copyright and byline information is included for attribution. “This post is republished with permission from www.legalwritepublications.com. Copyright 2011 Tonya M. Evans, Esq. Law professor, author, speaker and intellectual property expert”.

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