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Judge Rules that Reposting an Entire Article Without Permission Is ‘Fair Use’

A federal judge ruled in favor of a defendant who reposted an entire article in a copyright case on Monday, Wired reports. The lawsuit was brought by Righthaven, a Las Vegas-based “copyright litigation factory,” according to Wired, that has sued more than 200 websites, bloggers, and commenters for copyright infringement. This particular lawsuit targeted Wayne Hoehn, who posted an entire editorial from the Las Vegas Review-Journal and its headline, “Public Employee Pensions: We Can’t Afford Them” on a website medjacksports.com. Hoehn was not an employee of the site.

The “fair use” doctrine can be used as a copyright infringement defense in a situation where a defendant has used a copyrighted work without permission. In short, it provides a defense where the work has been used for limited, noncommecial purposes, including commentary, criticism, news reporting, research, and scholarship.  Whether or not “fair use” applies is based on a balancing test. Let’s (roughly) go over the elements as applied to this case.

For one, the doctrine looks at the effect of the reproduction on the monetary value of the original piece. While Righthaven argued that Hoehn’s reposting had cost the article’s original website some eyeballs, the judge found that no evidence was presented that “the market for the work was harmed.”

Second, the doctrine considers whether the reproduction itself is intended to make money off of using the original work. In this case, the judge found that Hahn’s use was “noncommercial,” and just for the purposes of “online discussion.”

Third, the doctrine looks at the original work itself. Intriguingly, here the judge took into account the fact that only five of the editorial’s 19 paragraphs were “purely creative opinions” of the author. That was “not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls,” the judge wrote.

Finally, the doctrine considers the sheer amount of the original work taken. In this case, clearly the entire article was reposted. But set against the other factors, it was not enough.

It’s worth pointing out that the judge also held that Righthaven did not have legal standing to bring the case at all, because Righthaven did not itself own the copyright of the Las Vegas Review-Journal article. But we think the “fair-use” analysis is the more interesting discussion in this case.

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