The Sad Story of a Copyright Infringement Bully
All year long, one can either read about Google being sued for copyright infringement, or about Righthaven’s legal contentions being crushed by the plat of a judge’s hand. Did Righthaven ever win a lawsuit?
This week, a judge ruled that repossession of an entire article for purposes of discussion fell under the fair use doctrine and was consequently not copyright infringement. This is the third time, at least, that Righthaven is denied relief on such grounds.
This time, Wayne Hoehn had posted on a website an article originally from the Las Vegas Review-Journal. Hoehn apparently intended to generate discussions about it. First, the purpose of the use of the article and the effect of such use on the value of the copyrighted work, says the judge, do not support the existence of any copyright infringement: “Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate.”
Second, the judge ruled that the article in itself is within the realm of copyright protection, although it did contain diffuse elements of creativity. “While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the work is not within ‘the core of intended copyright protection.’” Sadly, as only expressions of ideas are copyrightable, newspaper articles, which must follow a certain redundant format where creativity is limited, stand little chance of being protected.
I must confess, I am at a loss. If the nature of a work at issue should reasonably be taken into account when determining the scope of protection that the work deserves, the judge’s reasoning, or the bits of which were reported, is surprising. If an article is not copyrightable work, then the fair use doctrine should not be seen as relevant. Instead, the decision seems to declare that both Hoehn’s purpose in posting the article on the net and the effect that the repossession had on the market or on the value of the article of the Las Vegas Review-Journal satisfy the requirements for the application of the fair use doctrine. On the other hand, the article is not creative enough that it should benefit from copyright protection. And I thought fair use only applied to copyrighted works.
Would Righthaven’s claim have been more successful if it had been based on moral rights violations, such as violations of the right to control who owns the work and to dictate the way it is displayed? But as moral rights, when strictly construed, are not transferable, Righthaven would not have standing for claims based on moral rights infringement: Righthaven, whose business is to acquire newspaper content once an alleged infringement has happened, cannot have control over the moral dimension of the copyright protection afforded to an article. Interestingly, Righthaven might be unsuccessful in court exactly because it does not have control over the moral rights attached to a copyrighted work, and hence does not have standing, at least the moral one, in asserting copyright infringement.
As to standing, here, the judge apparently decided that Righthaven, no matter what, did not have it.