Righthaven Seeks Appeal of Fair-Use Ruling

Matt Lonsdale is a JD candidate at Dalhousie University.

U.S. copyright litigation corporation Righthaven is appealing an October ruling by a U.S. District Court judge that the copying of eight sentences of a newspaper article by a Las Vegas real estate agent qualifies as a “fair use” of the material under U.S. copyright law.

Righthaven acquires the copyright in articles originally published in the Las Vegas Review-Journal and the Denver Post and initiates infringement lawsuits in relation to that material. To date they have brought legal action against at least 238 individuals. Real estate agent Michael Nelson was alleged to have copied a “significant and substantial” portion of a Review-Journal article on the housing market to his website. Real estate firm Realty One and Realty One executive David Tina were co-defendants in the lawsuit.

The judge observed that Nelson had copied only a portion of the article, and that the particular portion that he used was primarily factual and did not contain commentary by the article’s author. “As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work” [sic]. This was despite a finding that Nelson’s blog, when look at as a whole, was a commercial venture designed to increase business.

Righthaven had successfully moved for a default judgement in the case against Realty One. Counsel for Realty One were able to have this set aside following the judge’s ruling in Nelson’s case. The case against David Tina was also dropped. At the time, Righthaven CEO Steven Gibson stated that a settlement with Nelson had been reached prior to the judge’s ruling. An appeal may mean that this was not the situation. Gibson also stated that the availability of a fair use defence in this situation, where only a small amount of the article was copied, was not particularly relevant to the bulk of Righthaven’s other cases, where the entirety of the articles are copied.

Unlike the U.K.’s Media Cat, Righthaven acquires full rights to the material which it files lawsuits over. Many defendants have complained about their policy of not issuing warnings, such as take-down letters, prior to initiating litigation. Righthaven has defended this practice, claiming it is necessary to deter online copyright infringement.

While Nelson’s actions may have qualified as “news reporting” for the purposes of the “fair dealing” defence to copyright infringement in Canadian copyright law, the “fair dealing” provisions are generally seen as more restrictive than the “fair use” concept that exists under U.S. copyright law. Among the many changes proposed by Bill C-32 is a broadening of the “fair dealing” provisions to include parody, satire and education.

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