Federal Court Declares Newspaper Excerpts ‘Fair Use’

Earlier this month the federal district court in Nevada issued a declaratory judgment that made it a lot harder for copyright holders to file lawsuits over excerpts of material being used on web sites and online forums. The judgment is a direct blow to law firms like Righthaven, who filed a ton of lawsuits against websites claiming that they had infringed on copyright holders it represented.

Judge Roger Hunt ruled that the Democratic Underground did not infringe the copyright of a Las Vegas Review-Journal newspaper article when a user posted a five-sentence excerpt in its forums, along with a link back to the newspaper's website.

Judge Roger Hunt’s judgment sets a precedent noting that an online forum is not liable for its users’ posts, even if it was not protected by the safe harbors of the Digital Millennium Copyright Act’s notice and takedown provisions. This decision also clarifies that posting excerpts from an article and including a link is fair use and not an infringement of copyright.

This case began when Democratic Underground (represented by the Electronic Frontier Foundation, Fenwick & West LLP, and attorney Chad Bowers) was sued by Righthaven. They asserted, falsely that they owned the copyright in the article, but the Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright because it was a fair use of the material. They brought Stephens Media, publisher of the Review-Journal, into the case.

Last June, the Nevada federal court dismissed Righthaven's infringement case because the newspaper publisher was the true owner of the article, but Democratic Underground's counterclaim against Stephens Media continued. After attempting to defend the assertion of copyright infringement, Stephens Media conceded, paving the way for the court’s declaration.

The original lawsuit against Democratic Underground was dismissed when Judge Hunt found that Righthaven did not have the legal authorization to bring a copyright lawsuit because it had never owned the copyright in the first place. They claimed that Stephens Media had "transferred copyright" to them before they filed the suit, but a document unearthed during the course of the lawsuit – the Strategic Alliance Agreement between Righthaven and Stephens Media — showed that the copyright assignment was not legal, and that Righthaven was merely agreeing to handle the case at its own expense in exchange for a cut of the recovery. In addition to dismissing Righthaven's claim, Judge Hunt sanctioned the firm with fines and to report to other judges its relationship with Stevens Media. Righthaven has refused to pay the sanctions.

The EFF has a lengthy article about the case and Righthaven's continued efforts to avoid its obligations to court cases it has filed and to legal judgments rendered by the courts. Find that here.


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