The Emerging Blog Specific Copyright Cases

RightHaven, LCC, v. Center for Intercultural Organizing, 2:10-CV-1322 JCM (LRL) (DC Nev., 2011)

The word ‘blog’ began as a typo, and now it’s a genre all on its own. And with the emergence of a new genre comes a category of case law that arises specifically from that genre. April 22, 2011, RightHaven failed in its effort to get a copyright infringement judgment, and instead succeeded in getting a judge to find, even a 100% republications, can be fair use.

Consistent with RightHaven’s pattern of eschewing what might be solved by a simple DMCA Take Down request, and instead, precipitously filing a federal copyright infringement action, this action was intended to halt defendant’s 100% republishing of a newspaper article discussing the Las Vegas alleged focus on minorities as illegal immigrants. The website is owned and run by the defendant non-profit and begun when a Somalian Muslim leader, the head of a mosque, was arrested in the airport. Based in Portland, Oregon, “At CIO, we are not talking about black and brown, we are talking about Somalis and Ethiopians, Congolese and Liberian, Mexican, Korean, Palestinian and Afghani community leaders working with other Latino leaders, African American leaders, and progressive white folks.” http://www.interculturalorganizing.org/

The court carefully analyzed the four factors of Section 107 Fair Use finding without reservation that fair use applies:

a. Purpose and character of the use: transformative and noncommercial.

b. Nature of the copyrighted work: informational and factual;

c. Amount and substantiality of the work used: “…although the defendants posted the work in its entirety, the amount used was reasonable in light of the purpose of the use, which was to educate the public about immigration issues.”

d. Effect on the market: “… the plaintiff has failed to allege that a “market” exists for its copyright at all, and the court declines to simply presume the existence of a market.”

Concluding, the court emphasized the fair use defense applicability and then went on to comment negatively on the plaintiff’s business model:

“The court finds that the defendant’s use of the copyrighted article in this case constitutes fair use as a matter of law. The article has been removed from its original context, it is no longer owned by a newspaper, and it has been assigned to a company that uses the copyright exclusively to file infringement lawsuits. Plaintiff’s litigation strategy has a chilling effect on potential fair uses of RightHaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation.”

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