federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.
It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.
Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.
Not really a big surprise. One of the points I made at this month’s CSUSA panel on this topic was that when you push too hard on enforcement, someone who matters — either legislators, judges or rampaging mobs — will punish you and leave in a place that is outside what you thought defined the range of outcomes. In a bad way.
Big IP never wants to hear this until it’s too late. But there is a sort of rough justice in such an outcome, for it is the mirror-image, by alternative (i.e., judicial) means, of a legislative scheme that says, as the Copyright Act does, “Don’t think your damages are limited to what you would have had to pay if you had not infringed. There is a big penalty, via attorneys’ fees and statutory damages, for doing it this way. Cross at the green, not in-between.” I have argued for some time that the one-sidedness of this equation, which does not account for the welfare detriment caused by abusive and overreaching litigation, is unsustainable. I have expressed hope for a legislative improvement in copyright policy, though, not a judicial one. That hope may be vain — and now it may be the exact opposite of what happens.
Was it a foreseeable risk that judges might blow past traditional bounds of fair use to make a point in a situation such as this? There will be plenty of analysis on the question, as there ought to be, considering the following excerpts from the opinion (the link to which Randazza emailed me during the bleary-eyed hours last night). Just working off the Wired article, here are some … interesting concepts.
One of them is that the court found a lack of standing, yet went ahead and ruled on the fair use issue anyway, writing, “Assuming Righthaven was found to have standing to bring this action, the Court nonetheless finds Hoehn is entitled to summary judgment on the ground of fair use of the Work.” That is rather unusual, and arguably resulted in a holding that is dictum. It could also be described as an alternative ground for dismissing the complaint, of course, but, again, the court went the extra mile to make not only a point about fair use, but an arguably controversial one.
Moreover, the finding of fair use was based here on (a) a holding that the use was non-commercial, which (b) militated against applying the traditional rule that copying an entire work is prima facie infringement, or at least that the use of the work has a strong presumption against fair use in light of (c) the fact that there was no cognizable impairment of the economic value of the copyright. The court makes this seem quite straightforward. This factor certainly is, as the Media Bloggers Association brief filed in another Righthaven case in Nevada argues, certainly a significant one in the fair use analysis (which we could not urge in full, because the procedural posture was one of default judgment) and must be considered with respect to awarding damages, including statutory damages.
Fine, as far as it goes.
But every pendulum has its period, and then it swings back. It will swing back even faster if it’s pushed, and there’s not much more incentive for the copyright lobby to muster its established ability to push, and hard, and pretty much get what it wants than running to Congress and saying, “Judges are letting bloggers reprint entire newspaper articles for nothing! Here’s some money! Save us!”
It’s not a terrible argument, even if it is a gross oversimplification, or even a not so gross one. Here’s why:
The threat to newspapers There is no particular reason why newspapers have to survive economically any more than blacksmiths or the Santa Fe Railroad or Blockbuster Video, but there is still quite a lot of symbolic and political power in the cry of “newspapers are dying!” The appeal to special pleading will have a fine poster boy in the trend, if it is one, toward full-free-reprint-licenses-for-all, especially if “all” means “noncommercial” means “bloggers” — because powers that be really don’t like bloggers, see.
The policy underlying the Copyright Act I have moaned at length about the distortive and unjust effects of the current copyright enforcement system, especially the fact that you can get not only a theoretically unpredictable amount of statutory damages for economically insignificant infringement but full-boat attorneys’ fees and costs just for proving infringement of an economically worthless, but properly registered, copyright. Yes, that is what has driven Righthaven’s litigation arbitrage program. But there is actually a reason for that policy: It is meant to protect, not so much Hollywood and the recording industry, but “creators” in the same hazy, old-timey sense as “newspapers” per the last paragraph: Starving artists and writers who could never afford to secure legal protection for works whose economic value is, shall we say, as yet still unproved, but which as a policy matter we do wish to protect.
In fact, we do. The policy is not irrational; just as an empirical matter, it needs some tweaking.
So, no, we should not want to see the baby thrown out with the bathwater. And the fact is, newspapers are today’s starving artists — generating a product of some questionable market value but yet which, as a society, we are probably not prepared to send down the hole just yet. They are also, let’s not forget, a huge part of the mainstream media, which has certain friends in high places.
So in a hyperspeed world, could Righthaven have taken us to the extreme of the pendulum swing on this, opening us up to a legislative counter-reformation Ã la the overreaching, abusive — and bound for enactment — Protect IP Act? Or is the overall copyright crackup, which includes not only litigation results but massive public abandonment of compliance with or respect for the law and technology that makes copyright mainly a suggestion, bigger than all that?
All I know is that they teach us in law school that “bad facts make bad law.” Here Righthaven’s problems with its “standing” — the fact that, to put it simply, it never really owned the copyrights it was suing over, which the Copyright Act prohibits — have clearly antagonized the bench and given judges reason to take a very severe look at the whole ball of a wax in way no one would have predicted.
It’s all fun until someone gets hurt.
UPDATE: Similar thoughts, and the wisdom to link back here to mine from Vegas Inc.