Copyright: Fair Use, Part 1
Fair use is law. It is not an admission of copyright infringement with a defense. It is not just a doctrine. It is part of U.S. copyright law—specifically, section 107 of the law:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Why do I say this? Because Big Media tends to put scare quotes around “fair use,” sometimes to deny that it exists, and because it’s been claimed so often that it’s only a defense—that claiming fair use is admitting copyright infringement. It’s not. If the first paragraph of section 107 is too long, here’s an excerpt (emphasis added):
The fair use of a copyrighted work…is not an infringement of copyright.
The problem that arises is threefold:
· As you can see, the definition of fair use is vague—it’s a set of factors, not a clear rule.
· There’s been a generally successful ongoing push to minimize the use of fair use, and specifically to demand that authors and creators obtain permission for every use of copyrighted material, even if such use seems likely to fall into fair use.
· Even more so than for other aspects of copyright law, fair use is diminished by bullying and intimidation—the threat of lawsuits and actual lawsuits that heavily favor corporate interests over individual interests, including those of writers and other creators.
This two-part piece is in four or five sections dealing with various events and thoughts on fair use over the past couple of years. I’d originally hoped to do the whole thing in a single essay, but that once again seems too large for an issue with more than one essay. Therefore, the third, fourth and possibly fifth sections will appear later—probably in the next issue. The first portion of this roundup is, I believe, unmistakable good news. The others are all more complicated. I should note that I am not a lawyer and I am not offering legal advice.
Here’s how Wikipedia puts it in an excruciatingly value-neutral piece:
Righthaven LLC is a copyright holding company founded in early 2010, which enters agreements from its partner newspapers after finding that their content has been copied to online sites without permission, in order to engage in litigation against the site owners for copyright infringement. The lawsuits have been heavily criticized by commentators, who describe the activity as copyright trolling and the company as a “lawsuit factory”.
I’m not sure the verb in that first sentence has the right tense. At this point, “was” appears more appropriate, especially since the company’s assets are subject to seizure and the domain (righthaven.com) has already been sold at auction. But that’s getting ahead of the story.
Righthaven set up a deal with the publisher of the Las Vegas Review-Journal to sue people—bloggers and others—for reproducing newspaper articles on their sites without permission. In the first year, it filed 255 suits—typically demanding $75,000 and the “infringer”‘s domain name and settling for a few thousand dollars. (Does this “sue for the moon and settle for a few thousand bucks” model sound at all familiar?) Here’s the awful part, again from Wikipedia: “As of December 2010 approximately 70 cases had settled.”
Later, Righthaven set up similar agreements with an Arkansas outfit and Media News Group. It also started suing over graphics and photographs and adding other newspapers. After all, what a deal! The company bullies bloggers and others and the newspaper gets half of the action.
Pretty sweet. Identify “infringers.” Send ‘em nasty letters and file suits. Collect Big Bucks. Profit! Until…people started fighting back, with help from the Electronic Frontier Foundation and others. That started before the first material collected for this roundup, so we’re entering the story partway in.
That’s the title on David Kravets’ November 18, 2010 story on Wired.com’s “Threat Level.” Seems Righthaven had even been suing for relatively brief excerpts—for example, eight sentences out of a 30-sentence story about the real estate market. Realty One Group (or, rather, realtor Michael Nelson on his blog) quoted the material. Righthaven sued. Instead of coughing up $3,000, Realty One filed a motion to dismiss claiming fair use. The quick discussion by the court found that three of four factors favored fair use and granted summary judgment for the defendant (which only happens when the facts can’t support a finding in favor of the plaintiff):
After reviewing Nelson’s use of the copyrighted material, the court finds that Nelson’s use falls within the Fair Use doctrine. Accordingly, Nelson did not infringe Righthaven’s copyright as a matter of law and the court shall grant Nelson’s motion.
Whoops. So Righthaven said it would only file lawsuits when at least 75% of an article was quoted. Specifically, it said that in a case where it was suing a political group for quoting four paragraphs of a 34-paragraph story—and then moved to dismiss that suit without granting legal costs to the political group (and EFF).
I’m pleased to say that Matthew Lasar used Fair Use without scare quotes in this November 2011 story at ars technica. This time, the suit was over an entire article—and the judge wanted Righthaven to show cause why the suit shouldn’t be dismissed on the basis of fair use. Traditionally, unfortunately, it’s been up to the person or group using fair use to defend that use—but the tide was starting to turn.
The defendant was the Center for Intercultural Organizing in Portland, Oregon, an advocacy group for immigrants and refugees. CIO’s blog had (apparently) republished in full a news report on misdemeanor violations leading to deportation. Righthaven not only sued for statutory damages, it wanted loads of stuff about CIO including its financials and “All evidence and documentation relating to the names and addresses (whether electronic mail addresses or otherwise) of any person with whom the Defendants have communicated regarding the Defendants’ use of the Work”—that is, presumably, everybody who’d read the blog. Oh, and it wanted CIO’s domain.
CIO filed a motion to dismiss because Righthaven didn’t hold copyright until after the item was posted (Righthaven claimed to transfer copyrights from the papers), and thus lacked standing to sue. Lasar writes:’
What’s interesting about the Nevada court’s latest action is that Judge Mahan is leapfrogging over the Center’s standing and jurisdiction arguments and turning the matter into a Fair Use issue.
In other words: Maybe it doesn’t matter who holds copyright; maybe it’s fair use in any case.
That’s how it turned out, as explained in this March21, 2011 post at EFF’s DeepLinks Blog by Kurt Opsahl. (EFF also properly uses fair use without quote marks.)
Last Friday, a judge in the Nevada federal district court patiently explained why fair use disposes of Righthaven’s copyright claim arising from the republication of an entire news article by a nonprofit organization. The hearing was in one of the now-250 Righthaven copyright cases. A written order, which will help set a persuasive precedent for other copyright troll cases, will be issued later.
I like Opsahl’s comment on these suits in general and Righthaven’s strategy:
Righthaven seeks the maximum damages under the Copyright Act as well as control over the domain name, but is willing to settle for four-figure sums that seem calculated to be less than the cost of defense. Meanwhile, the actual articles that Righthaven sues over remain available for no charge on the newspaper website. [Emphasis added.]
The judge went through the four factors, but also noted that Righthaven’s only use of the material was for lawsuits—and that the lawsuits were having a chilling effect on fair use.
Since Righthaven’s use of the work “does nothing to advance the Copyright Act’s purpose, which is to encourage and protect creativity,” Judge Mahan was inclined to find CIO’s non-commercial use to be fair even though it used the entirety of the article.
Strong stuff—I mean, after all, doesn’t every Proper American® know that the purpose of copyright is to enrich copyright holders?
Kevin Smith (you’re going to see his name a lot in this roundup) commented on the case in this March 31, 2011 post at Scholarly Communications @ Duke—one of the most consistently thoughtful and interesting blogs about copyright and publication issues in academic, out of Duke University Libraries. He found the case interesting, but with a caveat:
For those of us who believe that education and technological innovation require more space in the fair use analysis than courts usually recognize, there was an interesting decision recently that might be heartening if it were not so heavily dependent on the fact that the plaintiff in the case was so unsympathetic.
I choose to be heartened anyway, but Smith’s point is a good one. Righthaven was indeed a “really obnoxious plaintiff.” Smith focuses on two aspects of the finding:
· Determining that the CIO blog didn’t serve the same market as the newspaper, which broadens the fourth factor analysis.
· Focusing on the fact that it was Righthaven as “the rights holder” (I’m adding the scare quotes; you’ll see why a little later) rather than the newspaper:
The other unusual bit of reasoning in this case makes the “disliked plaintiff” effect quite clear. The judge talked a good deal about how the rights holder (Righthaven)was using the copyright, which is not usually part of the fair use analysis. Usually, the use inquiry focuses on how the defendant is using the work, but here the judge looked at how Righthaven was exploiting the copyright solely as a means for bringing lawsuits. Righthaven does not produce creative work nor support those who do; it simply sues, or threatens to sue, other entities. This use “exclusively for lawsuits” was a mark in favor of fair use, the judge seems to be saying, because finding otherwise would have a chilling effect on other fair uses. This is an extraordinary bit of reasoning—linked to, but conceptually separate from, a concern for a chilling effect on free speech—that represents a substantial departure from the usually fair use analysis.
Smith isn’t disagreeing with the decision; he’s noting unusual aspects of it. He’s also noting that the four factors aren’t exclusive (go back and read the wording carefully: “the factors to be considered shall include”). “Judges are free to consider other things, including the good faith of both plaintiffs and defendants.”
That’s Corynne McSherry writing on April 18, 2011 at EFF’s DeepLinks Blog, and it may be the less significant of two Righthaven-related EFF posts that day. But it was another strike against Righthaven—dismissing its absurd claim that it should be granted a defendant’s domain name(s) as a remedy for copyright infringement.
While this latter ruling was overshadowed by the unsealing of the Strategic Alliance Agreement, it represents a crucial precedent for other Righthaven victims. Righthaven always requests this relief in its complaints, and then uses the demand as leverage in settlement negotiations. As Righthaven CEO Steve Gibson said last year, the company sees the domain name threat as “something available to deter infringements.” Websites that have built up strong name recognition are highly reluctant to put that domain at risk.
But it’s an improper threat.
The country’s most popular online destinations, like the New York Times, Amazon and Yahoo!, have faced copyright infringement allegations based on their ordinary operations. But no one would imagine that a plaintiff alleging copyright infringement against those companies would be entitled to domain-name transfer as a copyright remedy if infringement was established. Consider the Drudge Report, one of many sites that Righthaven sued. Its domain name is estimated to be worth well into the millions of dollars. Transfer would confer a lottery- sized jackpot on the plaintiff and cause catastrophic harm to the defendant – a result that Congress did not and could not have intended when it crafted the copyright damages scheme. Moreover, seizing an entire website based on a tiny portion of content, even if that content were infringing, necessarily violates the First Amendment.
Incidentally, the link in the first quoted paragraph is to a Las Vegas newspaper—the Sun, that is, not the Review-Journal. It’s quite a story. We’ll get back to the domain bit shortly, but first…
Kurt Opsahl, also April 18, 2011 on the EFF DeepLinks Blog, with a revelation that could mean the advances in fair use were incidental benefits. At the request of EFF and Fenwick & West, the district court unsealed the Strategic Alliance Agreement between Righthaven and Stephens Media (publisher of the Review-Journals). (The court’s language makes it increasingly clear that it was getting, shall we say, mildly annoyed with Righthaven: “Righthaven and Stephens Media have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar, with defendants who do not want to incur the costs of defending the lawsuits.”)
That agreement is essential to the lawsuits, since only a copyright holder can sue for infringement. And the copyright holder needs to claim ongoing harm in order to have much chance of success. But here’s section 7.2 of the agreement:
7.2 Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.
Additionally, section 8 provided for termination of the “assignment” at any time. As Opsahl puts it:
In short, the “assignment” is a sham, Righthaven’s claim has been baseless from the outset. Stephens Media, which has struggled to hold the litigation at arms length, is the true and exclusive owner of the copyright and the only entity with standing to bring a copyright claim.
There’s more to the post—for example, Stephens Media making assertions that are, according to its own documents, less than truthful. I won’t go through the rest, although it’s interesting.
Things start getting a little bizarre right about here, as detailed in this April 22, 2011 item by Kurt Opsahl at DeepLinks Blog. Even though the Chief Judge (of a Nevada federal court) had already dismissed Righthaven’s claim that seizing an infringer’s domain was appropriate relief, the firm filed a new infringement case…and asked for not only the domain name but a whole bunch more:
Order the surrender to Righthaven of all hardware, software, electronic media and domains, including the Domain used to store, disseminate and display the unauthorized versions of any and all copyrighted works as provided for under 17 U.S.C. § 505(b) and/or as authorized by Federal Rule of Civil Procedure 64.
According to Opsahl,
Not only has the domain name claim been specifically and completely rejected by that very court, but Righthaven’s new citations do nothing to help its claim. As an initial matter, Section 505 does not have a subsection (b), and concerns attorneys’ fees, not the surrender of domains and hardware. While Righthaven probably meant to cite to some other section and was simply sloppy in the drafting, no section of the Copyright Act will help them. Indeed, Righthaven has already “concede[d] that such relief is not authorized under the Copyright Act.”
Rule 64 doesn’t help either—partly because the court’s already rejected the argument, partly because it has to do with state law, not federal law. Note that the new suit also continues the assertion that Righthaven holds exclusive rights to the articles involved—an assertion already undermined by the opening of the Strategic Alliance Agreement.
If you want to read just one EFF post regarding fair use and Righthaven, this might be the one to read—by Kurt Opsahl, posted April 26, 2011 on DeepLinks Blog. It follows the district court’s finding that Center for Intercultural Organizing (CIO)’s posting of a copyrighted news article was a non-infringing fair use. “The well-reasoned opinion sets a powerful precedent for fair use and against copyright trolling.”
While considering the purpose and character of CIO’s use, the court compared the use made by CIO with the use made by Righthaven. The court wrote: “Although the former owner, the LVRJ, used the 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.” This led to the court to conclude that the purpose and character of the work was “transformative,” meaning it was used for a new purpose and therefore weighed towards fair use.
Likewise, when analyzing the “market harm” factor, the Court noted that Righthaven “failed to allege that a ‘market’ exists for its copyright at all.” Indeed, recently unsealed evidence shows that Righthaven is unable to make that allegation, as it is contractually prohibited from licensing the works in question. The court also noted that “Righthaven cannot claim the LVRJ’s market as its own and is not operating as a traditional newspaper.” The court cited to eBay v. MercExchange, a landmark Supreme Court from 2006, which refused to presume harm to the markets of patent trolls (entities that buy up patents solely for purposes of litigation). Taken together, this meant that the “market harm” factor favors fair use where Righthaven is concerned.
Finally, the court’s overall balancing clearly disfavored copyright trolling. The Court noted that Righthaven’s “litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.”
The decision confirms that a non-publishing entity that uses copyrighted works for litigation is in a materially worse position than the original publisher in a fair use analysis. While Stephens Media would likely have lost anyway, the business model promoted by Righthaven ensured that at least two of the four factors and the balancing favored fair use.
As the post also notes, other problems with Righthaven seemed likely to overshadow fair use concerns, but this decision stands as a valuable focus on fair use: Even if Righthaven had standing (which it may not have), there was no infringement.
This piece, posted by Nate Anderson in May 2011 at ars technica, notes the start of another front in Righthaven’s battles. BuzzFeed, accused of violating Denver Post copyright in a photograph of a Denver airport TSA security patdown (Righthaven had already filed another 50 Colorado lawsuits after the Denver Post signed up), launched a class action counterclaim. Key points in the counterclaim:
· Abuse of process—suing first rather than attempting to negotiate licenses or filing takedown letters.
· Trying to seize domain names.
· Lack of standing: Righthaven doesn’t control the copyright.
In the end, the suit claims that all of Righthaven’s conduct was “motivated solely to intimidate Defendants and extract settlement money,” and it noted that vigorous attempts to defend Righthaven cases often lead to voluntary dismissals from the company. “Righthaven voluntarily dismisses the copyright litigations it has initiated if it foresees that it will need to engage in substantive litigation with the alleged infringer,” says the counterclaim.
Apparently the Colorado judge overseeing those cases isn’t much fonder of Righthaven than the Nevada judge is, based on this text from a court order:
Neither The Denver Post nor Righthaven attempted to mitigate any damages by simply sending a cease and desist letter, nor any other request to discontinue the alleged infringement, prior to initiating this action. Instead, Righthaven has brought this lawsuit (and apparently 251 others) against alleged infringers, further exacerbating the Court’s overloaded docket. Righthaven’s motivation for avoiding the simple act of requesting that Mr. Hill cease and desist is simple, it is using these lawsuits as a source of revenue. Such abuse of legal process should be rejected.
Apparently, Righthaven at this point was claiming it was suffering from a lack of due process—as it was fighting to avoid paying defendants’ attorney’s fees. And, as Anderson notes, Righthaven was getting money: “one has only to look down the Righthaven case list in Colorado to see just how many suits have already settled.”
This is a press release issued May 5, 2011 by EFF—relating to another Righthaven case involving Thomas DiBiase, the case that uncovered the questionable nature of Righthaven’s standing to sue. It’s worth noting as a landmark—the point at which fair use probably ceased to be the primary reason for dismissing Righthaven suits. The key quotation:
“Copyright law demands that only the owner of exclusive rights under the Copyright Act can enforce copyrights--someone with some skin in the game,” said EFF Senior Staff Attorney Kurt Opsahl. “But the Strategic Alliance Agreement between Righthaven and the Review-Journal shows that the newspaper kept all the rights to exploit its article. Righthaven’s role is only to pursue heavy-handed lawsuits while trying to extract settlements for less than the cost of defense.”
Kevin Smith weighed in again on May 12, 2011 at Scholarly Communications @ Duke with a truly interesting discussion of champerty (as defined by Bing, “an illegal agreement between a litigant and somebody who aids or finances litigation in return for a share of the proceeds following a successful outcome”).
The basic problem that rules against champerty address is the buying and selling of legal claims. At its most egregious, champerty involves someone making a frivolous claim, usually in tort, and selling that claim to a legal speculator. In this way the claimant gets a swift and certain profit, while the speculator steps in to gamble on a bigger return as a result of the lawsuit.
Over time the rules against champerty have evolved and often become subsumed into other kinds of regulation. The rules that limit lawyers’ contingency fees are one example of the evolution of champerty prohibitions. The underlying ethical concern, which is that courts will be clogged with poorly-justified lawsuits simply to serve external and purely financial interests, spans a wide range of legal fields and activities.
EFF used the term in its motion to dismiss one of Righthaven’s suits. And that’s where this post’s connection to Righthaven ends—because Smith is more interested in the Georgia State University lawsuit (see later in this article), “which is being partially funded by the Copyright Clearance Center.”
I want to be clear that this arrangement, where the Copyright Clearance Center bears some of the costs of prosecuting the litigation, is not precisely the kind of thing champerty rules were intended to prevent. In the GSU case, the rights holders are themselves the plaintiffs, and, since no damages are being sought, there can be no suggestion that CCC has purchased a stake in any recovery.
Nevertheless, and in spite of its own protestations, the CCC does have a financial stake in the outcome of the suit, which goes to trial in a few days. A ruling that narrows fair use even further than the interpretation of it that GSU and many other universities are already using would drive many more transactions to the CCC and greatly increase their revenue. Essentially, CCC is financing an aggressive marketing strategy by paying 50% of the litigation costs in this case. They did not buy a stake, but they certainly have a stake.
It’s not champerty—but it raises similar ethical concerns.
Suppose, for example, that one of the reasons that this case has not settled is that the plaintiffs are not subject to the normal financial concerns that accompany litigation. With an interested and supportive “angel” absorbing half the costs, it may be a smart gamble for plaintiffs to move forward even with a weak case rather than negotiate and settle on a reasonable “clarification” of fair use.
GSU is another and much more difficult discussion. Back to Righthaven…
That’s David Kravets, writing on June 20, 2011 at Wired.com’s “Threat Level.” This case involves a 19-paragraph editorial from the Review-Journal, posted by a user of a website “to prompt discussion about the financial affairs of the nation’s cities.” The judge noted that there was no evidence to back Righthaven’s claim that the post would reduce readership of the editorial on the newspaper’s site (an interesting claim to begin with, since the newspaper wasn’t bringing the suit), that the editorial was not primarily creative work and that the posting was for purposes of discussion.
But the judge didn’t need to decide fair use: He also found that RIghthaven lacked standing to sue. The defendant planned to seek legal fees. The piece notes that some bloggers who had settled with Righthaven were considering legal action against the firm.
One unfortunate aspect of this particular article: Kravets calls fair use “an infringement defense.” It’s not. If a use is fair use, it is not infringement.
Kravets again, this time in a May 2011 item at ars technica. The gist: Stephens Media asserted that it had revised the agreement with Righthaven so that Righthaven would have standing. Not that this would help with any suits already filed, to be sure: You can’t gain standing to sue after you’ve already sued.
But did anything really change?
Yet under the latest plan, Stephens Media still does not give up its copyright — meaning it wants to reap the benefits of risk-free payouts while continuing to retain ownership of the works in question.
Under the latest terms, which a different Nevada federal judge last week ruled did not give Righthaven standing, Stephens Media assigns its copyrights to Righthaven, but with a number of caveats. Under the deal, Righthaven is required to give Stephens Media 30 days’ notice if it plans to capitalize on those works for any other purpose than bringing an infringement action. And Stephens Media reserves the right to re-acquire for $10 any copyright it had ceded to Righthaven.
In effect, the arrangement prevents “Righthaven from ever exploiting or reproducing the work,” US District Judge Philip Pro of Nevada ruled in dismissing a Righthaven case last week.
And things kept getting worse for Righthaven. This one’s by Nate Anderson, published in July 2011 at ars technica. The heart of it:
Yesterday, a federal judge in Nevada ordered Righthaven to pay $3,815 in legal fees after botching one of its cases. Righthaven had sued one Michael Leon back in September 2010, but it didn’t even serve the right paperwork in the case. When multiple defendants started responding to the court, the judge notes that she “became suspicious that there may have been a problem” and set a hearing to talk about it.
And this (“Randazza” is a legal group that’s been handling a number of Righthaven cases):
The problems here were of a technical/procedural nature, but far worse could be coming in the more substantial cases. Randazza’s group also won a “fair use” finding last month in another Righthaven case, and they are now asking for $34,000. Given the standing issues that have plagued Righthaven—judges have found that the company didn’t even have the copyrights needed to bring many of these suits—much more pain could be ahead. Given that the average Righthaven settlement was apparently a few thousand dollars, it wouldn’t take many $30,000+ awards to wipe out the cash the company has earned in the last few years.
Another Nate Anderson ars technica item from July 2011, this one harking back to the Kravets piece but a little more bizarre in its telling.
Like a leech—or perhaps a tick—the copyright lawyers at Righthaven latch on tight and don’t let go, even as their cases have begun to crumble around them. Instead, they’re doubling down on their lawsuit strategy against individual bloggers who repost an article or two.
The story? In June 2010, Righthaven sued Dean Mostofi for reproducing an article about foreclosures. The day before this article, the judge tossed the case because Righthaven lacked standing to sue. Ah, but Righthaven claimed that the 2011 change in its agreement with Stephens Media gave it standing. To which the judge responded…well, not so much. He offered an example of what could and couldn’t change after filing a suit:
As an example, a party who misstates his domicile may amend to correctly state it. This is an amendment of the allegation. However, that party is not permitted to subsequently move in order to change his domicile and amend accordingly. This would be an amendment of the jurisdictional facts, which is not allowed. Here, Plaintiff and [Review-Journal owner] Stephens Media attempt to impermissibly amend the facts to manufacture standing.
So what did Righthaven do?
Hours after the case was dismissed, Righthaven filed a brand new lawsuit against him over the same charge, on the grounds that this time, the amended operating agreement with Stephens Media is in force and gives Righthaven standing.
Yet another July 2011 ars technica story by Nate Anderson—this time with a touch of the orphan defense (a person who’s killed his parents excuses the killings because, judge, he’s an orphan now). Righthaven did send a check for $3,815 to a lawyer—although it managed to use an obsolete address rather than the address of the law firm that appears on its pleadings. But that’s the icing. This is another story worth reading directly; it’s funny, if also a little sad.
Righthaven has been hit with both fee awards and sanctions in various cases, and it has resorted to such desperate stratagems to avoid payment that the Nevada federal judge overseeing many of its cases is fed up.
Back on July 14, Judge Roger Hunt ruled that “there is a significant amount of evidence that Righthaven made intentional misrepresentations to the Court… This conduct demonstrated Righthaven’s bad faith, wasted judicial resources, and needlessly increased the costs of litigation.” He hit Righthaven with a $5,000 penalty.
Righthaven asked for and received an extension for the payment—but then wanted another one.
The reason? It had spent so much time investigating ways to get out of the fine, and expended so much effort on dealing with other cases, that it simply couldn’t comply in time. (“Counsel’s investigation has been extremely time consuming and has also been impacted by numerous pending responses dates in a significant number of Righthaven and non-Righthaven matters.”) Also, no one would give Righthaven a bond for the $5,000, and the firm didn’t want to simply cough up the cash.
The judge was, by this time, pretty much fed up:
After reexamining the issues and counsel’s stated difficulties, the Court concludes that it was overly generous in granting the extension because counsel’s situation is largely—if not entirely—of his and Righthaven’s own making. Righthaven and its counsel should concentrate their efforts on material issues and court orders, not wishful research.
Further, if counsel does not have time to do all that he needs to in Righthaven’s dozens of cases, the Court kindly suggests that he or Righthaven obtain additional help, not complain to the Court about time constraints. Righthaven also informed the Court in its motion that it plans to request a stay of the monetary sanction. The Court already granted an extension, which it will not change, and suggests Righthaven not waste its time on a motion requesting any further relief from the sanction.
Here, in a separate case, comes the orphan defense:
In a separate case, Righthaven v. Hoehn, defense lawyers are demanding $34,000 after the case was tossed due to the issue with Righthaven’s lack of copyright ownership. (To rub salt in the wound, the judge went on to rule anyway that the “infringement” at issue was actually a fair use.) To avoid paying the opposing lawyers, Righthaven recently argued that fees could not be awarded; since Righthaven had no standing the sue, the court had no jurisdiction in the case, and therefore could not assign legal fees.
The defense attorney handling the case, J. Malcolm DeVoy, was incredulous.
“Righthaven deserves some credit for taking this position, as it requires an amazing amount of chutzpah,” he wrote. “Righthaven seeks a ruling holding that, as long as a plaintiff’s case is completely frivolous, then the court is deprived of the right to make the frivolously sued defendant whole, whereas a partially frivolous case might give rise to fee liability. Righthaven’s view, aside from being bizarre, does not even comport with the law surrounding prudential standing.”
That one, as it happens, didn’t take long to come to fruition. Yet another Nate Anderson ars technica story, this time appearing in August 2011:
This piece covers the decision in the Hoehn case. Anderson begins with this wonderfully terse summation: “The wheels appear to be coming off the Righthaven trainwreck-in-progress.” After repeating some of the information above (including DeVoy’s quote), we get the outcome:
The judge agreed. In a terse order today, he decided that Hoehn had won the case (as the “prevailing party”) and “the attorney’s fees and costs sought on his behalf are reasonable.” Righthaven has until September 14 to cut a check for $34,045.50.
That’s David Kravets in a September 2011 story at ars technica—and he’s quoting the new CEO of MediaNews Group (publisher of the Denver Post, the San Jose Mercury-News and several dozen other papers). The new CEO announced the termination of the Righthaven deal at the end of September—and said he’d never liked the idea.
Paton said if he was MediaNews’ chief a year ago, he likely never would have signed on with Righthaven, which hoped to fix the print media’s financial ills by suing bloggers and website owners for reposting snippets or entire copyrighted articles. Terms of the Righthaven-MediaNews deal grant each side a 50 percent stake in settlements and verdicts.
Naturally, the publisher couldn’t actually shut down the three dozen outstanding suits over Denver Post items—because, ahem, Righthaven “controls” the items and thus the suits. (The story includes a link to the agreement. According to the story, the agreement only gives Righthaven permission to sue—not any other rights to the content.)
Nate Anderson again, this time in a November 2011 ars technica story—and, again, the first sentence may say it all (but I’ll quote the entire paragraph):
Looks like it’s time to turn out the lights on Righthaven. The US Marshal for the District of Nevada has just been authorized by a federal court to use “reasonable force” to seize $63,720.80 in cash and/or assets from the Las Vegas copyright troll after Righthaven failed to pay a court judgment from August 15.
Still fighting over the Hoehn fees award, Righthaven was claiming that being forced to pay the fees could put it out of business or into bankruptcy, thus preventing it from winning the case on appeal. It didn’t get the appeals filed on time. The appeals court refused to delay the deadline—and when the money didn’t arrive, the lawyers on Hoehn’s side asked for a Writ of Execution, this time for roughly twice as much money given additional costs and fees.
Skipping over a few weeks (and some other stories) we get…
Once again ars technica, this time a December 2011 story by Jacqui Chang. (You might find one of the linked stories worth reading; it offers a concise summary of Righthaven’s history and its attorney’s continued belief that he was doing something worthwhile and legal.)
Here’s the first of three paragraphs, and maybe it’s all you need to know:
Righthaven’s domain name went up for auction on Monday in order to satisfy court judgments against the copyright trolling firm. The auction for righthaven.com is taking place at Snapnames and will remain open through 3:15pm EST on January 6, 2012. As of publication time, the auction has six bidders and the current bid is $1,250.
As noted in stories elsewhere, the domain finally sold for $3,300, to Stefan Thalberg of Zug, Switzeerland. The Righthaven man & wife legal team is facing an investigation by the Nevada State Bar.
The new righthaven.com includes the HavenBlog with this definition of “right-havened”:
past participle, past tense of right·haven (verb)
1. trans. To turn the tables on.
2. To inflict total karmic defeat upon, especially by means of an opponent’s purported strengths.
3. To reclaim a maligning term and adopt it as a banner.
4. @righthavened; see: Twitter
The new outfit offers “spineful hosting.” You can read more yourself.
One final note, as the various Righthaven cases unwind, this time by Kurt Opsahl, posted March 10, 2012 at EFF’s DeepLinks Blog.
Late Friday, the federal district court in Nevada issued a declaratory judgment that makes is harder for copyright holders to file lawsuits over excerpts of material and burden online forums and their users with nuisance lawsuits.
The judgment—part of the nuisance lawsuit avalanche started by copyright troll Righthaven–found that Democratic Underground did not infringe the copyright in a Las Vegas Review-Journal newspaper article when a user of the online political forum posted a five-sentence excerpt, with a link back to the newspaper’s website.
The key here: an online forum isn’t liable for users’ posts even if it wasn’t protected by the DMCA “safe harbor” clause. Excerpting portions of an interesting article and linking to that article is fair use. (Opsahl phrases it correctly: “a fair use, not an infringement of copyright.”)
That’s probably not all there is to the Righthaven story, but it’s enough for now. What does it all boil down to? A lawyer (or group of lawyers) sold a newspaper publisher on the idea that it could get back some of the money it’s losing by getting a few thousand bucks each from a few million “infringers.” Hey, if only a million lawsuits were settled for $3,000 each, the publisher would get $1.5 billion—as would, to be sure, Righthaven. If you ignore issues such as whether Righthaven actually had standing to sue and whether these repostings of material freely available on the newspaper’s website constituted infringement or were fair use, it might sound like a pretty sweet scheme. The publisher risked $500,000. It was probably not the best choice. In the process, fair use got some positive attention.
We turn now to something entirely different, not in a good way: A copyright infringement lawsuit by three publishers (Cambridge University Press, Oxford University Press and Sage) against Georgia State University. The story’s not over and I’m not attempting to provide a full discussion, but here are a few interesting documents along the way. The suit has to do with course readings distributed electronically through e-reserves and course management systems. The two university presses and one commercial press that brought the suit don’t seek damages; they seek injunctive and declaratory relief. GSU claims that the distribution is fair use based on its purposes (teaching, scholarship, research or non-profit educational uses). The suit was filed in April 2008 and amended in December 2008.
This October 1, 2010 piece by Kevin Smith at Scholarly Communications @ Duke is the earliest I tagged, although far from the earliest on the suit. This post cites and discusses a decision by judge Orinda Evans (Federal District Court in Atlanta) on cross motions for summary judgment. Smith didn’t think either side would win a summary judgment—and while he was right, “I have to admit to being surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community.”
For those who are keeping score, the Judge has granted the defense motion for summary judgment on two of the three claims—direct and vicarious infringement—and denied it in regard to the third claim, which is contributory infringement. The plaintiff’s motion for summary judgment has been denied in its entirety. The net result is that the case will go forward on the single issue of contributory infringement.
There’s a lot more here, and since I’m really only looking at the GSU case as it involves fair use, I’m skipping most of it: Go read Smith’s article. (He’s a good writer—much better than I am—so that’s not an onerous suggestion. Also, he knows what he’s talking about. And there is a “JD” after his name.) The most relevant portion for fair use: the judge’s finding that the 2009 GSU copyright policy “on its face does not demonstrate an intent by defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement.” That policy includes a set of checkpoints to be used in determining whether something is fair use—and it “looks quite a bit like those used on many other campuses.” In the absence of a settlement, Smith says, “this order increases my confidence that the focus will be on a realistic and pragmatic evaluation of activities that, in my opinion, ought to be considered fair use.”
Peter Hirtle asks that question in this October 4, 2010 post at LibraryLaw Blog. He notes the court’s ruling and Smith’s “excellent analysis” (briefly discussed above).
The bottom line is that the court did not find Georgia State guilty of direct and vicarious copyright infringement, as the plaintiffs requested. The only issue that will go forward is whether Georgia State contributed to the copyright infringement of others through its implementation of its 2009 policy.
Hirtle is most interested in the “unanswered question of who actually infringed”—since you can’t have indirect infringement without direct infringement.
The publishers seem to suggest that it was the “librarians and professors” who scanned, copied, displayed, and distributed the Plaintiffs’ copyrighted works “on a widespread and continuing basis.” Under the publishers’ theory, they could have sued the faculty members who made or requested the copies (and who also write the books they publish) for direct copyright infringement.
In reality, the most that professors and librarians do is make one copy available on a server. Any distribution of these works is initiated by the students. The court seemed to recognize this in a footnote when it observes that the plaintiff’s theory of liability would actually have the students who downloaded material be the potential direct infringers. The case may hinge, therefore, on whether students, and not faculty and librarians, are potential direct infringers. The question would then be whether a student making a single copy of a brief work for educational purposes is a fair use. If it is, then there is no direct infringement and there can therefore be no indirect contributory infringement.
It’s worth pointing out that the GSU situation and the Righthaven debacle have only one thing in common: Fair use comes into play. Otherwise, the major GSU issue that remains is (as far as I can tell) the one posed in that second paragraph above: “whether a student making a single copy of a brief work for educational purposes is a fair use.” Hirtle also points to another Smith discussion, this time on ARL Policy Notes. Also worth reading, given its clear note as to why the suit is against GSU administrators rather than GSU itself (the university is part of the state and immune) and its clear discussion of three types of infringement liability (direct, vicarious and contributory).
Barbara Fister’s October 10, 2010 “Library Babel Fish” column at Inside Higher Ed discusses the GSU case—and, as with Smith and Hirtle, Fister is always worth reading. She also reads the October ruling by the judge as good news “for now.” Her summary of what GSU is being sued over and why it matters to other institutions is crisp and concise:
This is an important case, because what Georgia State does is not unlike what most academic institutions are doing: making selected readings available to students either through library e-reserves systems, through course management systems, or both. Publishers feel somebody should pay if so many students have access to this literature. Librarians feel they are applying the four factor test carefully and paying permissions only when the factors do not support fair use—because we can’t afford to pay over and over again just in case. Faculty want to expose their students to texts that are important to their courses but which are not included in textbooks, and asking students to pay for the privilege, article by article, would make that difficult if not impossible.
Fister notes the “worst-case scenario”:
A ruling that found our systems for making readings available were themselves contributory to copyright violation and therefore illegal or so inherently risky that we’d have to buy our way out of the problem, abandoning fair use as a part of everyday scholarly life. Any ruling that suggested the use of these systems was largely illegal would tamp down any impulse to say “here’s a really interesting article on the topic we’re discussing” or “you really should become familiar with this classic essay, even though it’s not reprinted in your textbook.” The cost to the student (or to the institution) combined with the hassle of purchasing permission would toss most of those texts off the reading list.
Fister says these systems don’t harm authors. They threaten “a revenue stream that doesn’t actually exist: payment for readings that didn’t used to be assigned” because students wouldn’t be willing to pay for expensive course packs. She also does something interesting and a little wicked: Looking at the mission statements of the three publishers, two of them university presses. Oxford: “furthers the University’s objective of excellence in research, scholarship, and education.” Cambridge: “to further the University’s objective of advancing knowledge, education, learning, and research.” SAGE “believes passionately that engaged scholarship lies at the heart of any healthy society and that education is intrinsically valuable.”
It’s hard to see how suing universities whose faculty members want to share knowledge with their students is advancing knowledge, or to believe that the imposition of more cost on students or on the libraries that try to support their learning will make society any healthier. We clearly need a new way of funding publication costs if these publishers have a genuine interest in furthering knowledge and education.
Back to Kevin Smith at Scholarly Communications @ Duke, this time on December 12, 2010, discussing another lawsuit—against UCLA (the university itself) for copyright infringement because it streams digitized video through its course management system. This time the plaintiff wants damages.
The link between the two is clear: In both cases, the university uses course management systems to provide certain materials in the belief that doing so represents fair use (including special academic exceptions to copyright). And, as Smith says, it’s another part of “the assault on academic fair use.” Otherwise, the suits are quite different, in ways that make the second suit surprising.
Much of Smith’s discussion concerns the oddities of the suit and you really should read the original if you care about this sort of thing. Briefly, it’s odd that the suit comes from an association rather than the named distributor (generally, since an association holds no copyrights, it can’t sue); it’s odd that it names UCLA itself as defendant and claims damages, since UCLA is an arm of the State of California and presumably entitled to sovereign immunity; it’s odd or at least interesting that the suit goes to lengths to try to preclude a fair use defense—including the issue of whether the purchaser of a DVD has agreed to licensing restrictions that exclude fair use.
I don’t have much to say here except: Go read the piece.
Back to the GSU case, which was headed for trial in May 2011. Kevin Smith wrote this May 13, 2011 piece at Scholarly Communications @ Duke after perusing various pre-trial motions. He was particularly struck by the proposed injunction desired by the plaintiffs, It’s quite a document, asking for some modest remedies:
Subject only to the provisions of Paragraph III hereof, GSU shall be and is permanently enjoined and restrained from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission.
Paragraph III doesn’t help all that much. (There’s also a requirement that GSU make most or all of its computer systems available to the plaintiffs to monitor compliance, a requirement that would probably violate a number of state privacy laws.) Smith’s take (excerpted, but you should read it in full):
I have always known that there was a lot at stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.
First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU…It would make GSU responsible for every conceivable act of copying that took place on their campus. In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done without permission…
I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers. In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works. The administrative costs alone would be staggering, not to mention the permission fees.
Smith believes the real purpose is to drive more money to the Copyright Clearance Center (apparently funding 50% of the suit) in the form of permissions. “The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.”
Guess what’s considered acceptable as a “limited” excerpt? 10% or 1,000 words of a prose work—whichever is less. “Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.” (1,000 words make up less than a page and a half of Cites & Insights.) There’s also a rule about cumulative effect—the total number of excerpts across the entire GSU campus. Oh, and no more than 10% of the total reading for a class could be such brief excerpts:
The point of this rule is nakedly obvious. If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees. Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.
Smith doesn’t believe it would be possible to comply with the order, calls it “a nightmare, a true dystopia,” and hopes the judge is sensible enough not to grant it. I’m astonished at the sheer overreach of the proposal from two university presses and an academic publishers—as though they’re literally at war with universities.
This piece drew a lot of comments, some of them surprising. (The sheer number of comments may have to do with /. picking up the story.)
Paul Courant weighed in on this proposed order in a June 9, 2011 post at Au Courant. He begins by noting distinctions between adversaries and enemies. It’s a good discussion: We all deal with adversaries, and sometimes they’re our friends—but differ from us on one issue or another. “But in a case currently before a federal court in Atlanta, Cambridge University Press et al v. Patton et al, three academic publishers, with the support of other publishers’ organizations, notably the Copyright Clearance Center, have taken a position that crosses the boundary from adversary to enemy.”
Citing Smith’s take on the proposed order, Courant adds:
[W]hile it’s not an uncommon strategy to ask for far more than you expect to receive in a negotiation, which this proposed injunction surely is, your “highball” offer is certainly something that you wouldn’t mind having. What the plaintiffs are saying is that they are quite willing impose enormous costs on academic performance and academic freedom in exchange for higher profits. This is not the request of a friendly adversary; this is the attack of an enemy.
Courant’s an author and a faculty member, and says he does not know that he could comply with the proposed restrictions: “they are too onerous and much too expensive.”
Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes. And I hope that cooler heads will prevail among the plaintiffs as well. If not, we will have to find other means to a better future than the one which the publishers propose. Whether that future can include publishers who would behave inimically to the purposes of higher education is less certain.
He also links to the proposed faculty certification form that would have to be filled out for each piece of material to be used in electronic course reserves, and it’s quite a little form. By the way, one graph or chart from a book or periodical issue (or a drawing or cartoon or picture) is enough to require the form and to put cumulative use restrictions into play.
This one you really need to read in the original, posted on June 13, 2011 by Barbara Fister in her “Library Babel Fish” column at Inside Higher Ed—a summary can’t do it justice. She’s imagining a future in which the GSU suit has been settled on the plaintiff’s proposed terms (and, of course, adopted elsewhere—through threat of lawsuit if necessary). Where Smith refers to a nightmare scenario, Fister spells out that nightmare in real life.
One excerpt from a wonderful piece:
A special issue of your society’s journal published this week is devoted to the concept that you’re covering this afternoon. What a goldmine! One of the articles has a chart that will really get the idea across, and another one has a table full of results that would be perfect for a discussion. You make a couple of screen shots and start to insert them in your slidedeck before remembering that you’re only allowed to use one illustration from any journal issue without first getting permission. You send quick e-mails to the authors, who you know from conferences. Both reply almost instantly. They’re thrilled that you want to use their research in your teaching. Unfortunately, they don’t own the copyright. You’ll have to go through the publisher. That’s okay, you know the publisher; it’s your society after all. But since the organization outsourced their publishing operations, the copyright belongs to a for-profit corporation based in Europe. You search for their permissions policy online, but run out of time. Would have been sweet . . .
As far as I can tell from looking at the source documents, Fister is not exaggerating. Not at all.
Kevin Smith again, writing after the actual trial. This post appeared at Scholarly Communications @ Duke on August 3, 2011. He links to post-trial briefs from both sides (requested by the judge) and some unrelated publications.
Reading the plaintiffs’ brief, I was struck forcefully by the realization that they are asking the Judge to eliminate fair use virtually entirely for academia and instead substitute a compulsory license. This is especially clear when you see in their proposed injunction a requirement that permission be obtained for 90% of the readings in any course, regardless of whether or not some or all of that 90% could be considered fair use (under the extremely restrictive definition provided in the proposal). This is essentially asking the court to force a license even where the law—under anyone’s interpretation—does not require it.
The defendants argue fair use. Smith finds the argument compelling, noting two points in particular:
First, the defendants address the frequent claim made by publishers that the Supreme Court, in Campbell v. Acuff Rose Music, has limited fair use to situations that are transformative and that copies for educational purposes are not transformative. The defendants proposed Conclusions of Law point out that Campbell itself expressly renounced this claim in two ways. First, it explicitly noted that “transformative use is not absolutely necessary for a finding of fair use.” Then, in a footnote (number 11), the Campbell Court stated that “The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.” You seldom get such devastating language to direct against one of your opponent’s central contentions.
The second really important aspect of the defendants’ proposed Conclusions of Law is this simple (if grammatically awkward) statement, which ought to be repeated like a mantra whenever fair use is discussed, because it is so obviously right: “The fair use defense would mean nothing if it addressed only those uses that plaintiffs have not developed a mechanism by which to charge for such portions of the work.”
It’s hard not to like that last quoted sentence, awkward or not. Or, as the first comment says, “Amen!”
And that’s it for this discussion. It’s also the end of Part 1 of this two-part roundup. More later…
When I wrote this section in mid-May, a penultimate paragraph said the judge hadn’t issued a ruling; these things take time. The judge did issue a ruling. On May 11, 2012. Judge Evens found copyright infringement in five of the 99 cases, fair use (or some other justification) in 94 cases. But she did find infringement in five cases—in a thoughtful 350-page decision. A lot has appeared since then and will continue to appear as the publishers propose an injunction, GSU and others respond and the judge determines how to go forward.
I have 20 items tagged with “gsu” in my diigo library tagged gsu—it’s not exhaustive by any means, but it’s a start. This case will expand the understanding of fair use and undermine some of the more nonsensically restrictive guidelines for its use within academia. Beyond that, I haven’t a clue.
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