UPDATE: On April 22, the court in Righthaven v. Jama and the Center for Intercultural Organizing issued a written opinion reflecting its earlier bench ruling that the posting of an entire news article on the CIO Web site was fair use as a matter of law.

There are a few differences between the bench ruling, as reflected in news reports, and the opinion as issued. The opinion includes a number of conclusions that are likely to be controversial, including the following:

• The defandant’s re-posting of an entire news article to educate the public is transformative from the current copyright holder’s use, which is “nothing more than litigation-driven.”  Thus, the court said, the defendant’s use “does not constitute a substitution for plaintiff’s use.”  (The court did note, however, that the former copyright owner did use the article for news-reporting purposes.)
• The purpose of the use was non-commercial because the defendant was an educational, non-profit organization.
• The purpose of the news article is informational and thus the work entitled to less copyright protection than a “creative work of entertainment.”
• The use of the entire article was reasonable because the purpose was to educate the public and the factual nature of the information made it “impracticable” to cut the article or edit it down.
• No market harm was demonstrated by the plaintiff.

Righthaven, LLC v. Jama and Center for Intercultural Organizing, 2:10-cv-01322-JCM -LRL (D. Nev. April 22, 2011).

*****  ORIGINAL POST ****

We recently wrote on the copyright enforcement lawsuits brought by Righthaven LLC, the intellectual property enforcement firm, and in particular, on a pending ruling on the issue of fair use in the Righthaven litigation against the Center for Intercultural Organizing (CIO).

On Friday, March 18, Judge James Mahan, who is presiding over Righthaven LLC v. CIO in the District of Nevada,  announced that he would dismiss Righthaven’s lawsuit on the grounds of fair use. The lawsuit involves the posting of an entire article from the Las Vegas Review-Journal on the organization’s Web site. According to a news article in the Las Vegas Sun, Judge Mahan indicated the following in a ruling from the bench:

• that the CIO was using the article for educational purposes and not to raise money;
• that the article was primarily factual as opposed to creative;
• that its use did not harm to the market for the article.
• that Righthaven was remiss for not notifying CIO in advance of the lawsuit.
• that the copyright in the article, once transferred to Righthaven by the Las Vegas Review-Journal, was entitled to lesser protection under the Copyright Act.
• that the use of the copyright in the article (presumably as the basis for a lawsuit) has a chilling effect on free speech and doesn’t advance the purposes of copyright.

In response to the statement by Righthaven’s attorney that the company intended to appeal, the judge commented, according to the Las Vegas Sun article: “I realize this is going to be appealed. I tell litigators ‘that’s why God created San Francisco,” (i.e., the location of the U.S. Court of Appeals for the Ninth Circuit.