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.
In this case, the unsympathetic plaintiff is called “Righthaven” and their business is to receive transfers of copyright in news articles (mostly from the Las Vegas Review-Journal)and then bring suits against Internet sites that reprint all or part of the stories. They ask for maximum damages at trial, but offer to settle cases for a few thousand dollars; thus they are supported primarily by people who pay up out of fear and to avoid the cost of putting on a defense. On March 18 a district court judge dismissed one of those lawsuits, holding that the reposting of the article in question was a fair use. The judge’s reasoning, as reported here, here and here, was especially interesting and reflects why it is good to get sued by a really obnoxious plaintiff.
First, the Judge applied an interesting twist on the transformative fair use analysis, finding that the use of the news story at issue by the defendant non-profit organization was not a market competitor with the newspaper where it was originally published. The Center for Intercultural Organizing, he found, did not serve the same market as the newspaper, so the fourth fair use factor favored a finding of fair use. This is an interesting conclusion, given that there was no “new work” created here but merely a re-posting of an entire article where it would more easily be found by those who care about the work the CIO does. While this thinking about the fourth fair use factor usually happens in the context of a new work like a parody or critical commentary that is clearly transformative, here the judge simply tries to divide the audience for a news story from that of a community organizing website. Would this kind of logic translate to the context of re-posting certain works for educational purposes? It might, but we must remain aware that the nature of this particular plaintiff really colored this decision.
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.
I am not saying, by the way, that there is anything wrong with the judge’s approach here. Part of the message we can take from this case (apart from the value of being sued by a really bad plaintiff) is that fair use is deliberately open-ended and driven by specific circumstances. The fair use section of the copyright law explicitly makes the list of four factors non-exclusive, so judges are free to consider other things, including the good faith of both plaintiffs and defendants. The judge did that here, and I have no quarrel with his method or his conclusion. We need to learn from this case both that the fair use analysis is intended to uncover particular facts about a specific situation, and that it is not easy, because of that purpose, to translate one decision, for better or worse, into other circumstances.