Commentary

Political Site Argues Fair Use In Righthaven Copyright Case

Sued by Righthaven for infringing copyright by allegedly allowing a user to post five sentences from a lengthy Las Vegas Review-Journal article, the political site Democratic Underground is asking a judge to dismiss the lawsuit on the ground that it made fair use of the article.

Democratic Underground, which is represented by the digital rights group Electronic Frontier Foundation, also argues that the case should be dismissed for a wide variety of other reasons. Among others, the site says it had an implied license to use the material, the suit is trivial, Righthaven should have named the person who actually uploaded the material as a defendant, and Righthaven should have attempted to mitigate damages by asking the site to remove the material before suing without warning.

Of the 135-plus Web sites sued to date by Righthaven, Democratic Underground appears to have one of the strongest defenses, says Citizen Media Law Project attorney Kimberly Isbell. One reason is because the site only displayed five sentences out of more than 50 of the original article, "Tea Party power fuels Angle."

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Another is that a user, and not the site owner, allegedly posted the excerpts; in fact, had the site followed some formalistic requirements set out in the Digital Millennium Copyright Act, it would have been able to argue that it was protected by the safe harbors, which generally immunize sites from copyright liability for users' posts.

Additionally, the article concerns politics -- and courts generally protect people's right to discuss matters of public importance, such as elections.

Already another federal judge in Nevada has indicated that she might find reposting an entire article a fair use. "Noncommercial, nonprofit activity is presumptively fair," U.S. District Court Judge Gloria Navarro wrote in a separate Righthaven case. "This is because a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

If taking an entire article is arguably fair use, then certainly displaying an excerpt of a small portion of an article should be.

The EFF isn't just seeking dismissal, but is also asking the court to order that Righthaven pay attorneys' fees. Should the judge do so, Righthaven's lawsuits could become a much riskier venture for the controversial company.

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