"Fair Use" for non-commercial purposes "broadened" by Federal Judge

For those who have not noticed, there has been strong advocacy, lately, for a loosening or elimination of US intellectual property laws. These laws impact conditions -- like who, how, when and why -- under which copyrighted materials, like music, art, literature, etc., and patented processes and goods can be obtained, used, sold and/or distributed. While some sort of protection for the individual creator of such products, processes, and published works seems to be fair in my opinion, the real question is whether current laws exist more to protect the artist/author/engineer or to grant long-term quasi-monopoly to the publisher/manufacturer. Copyright laws, for example, which hold for 90 years (far outside the lifespan of the average creator of a given copyrighted work), do nothing but grant monopoly to the publisher and limit access to relevant art and knowledge. This latter result is exacerbated by the practice of ceasing publication of works on which publishers claim copyright, for profit considerations. If publication of a work is not economically viable, then whose financial interest is served by continuing to retain copyright to it? None, in my opinion. Under these conditions, copyright laws succeed far more at impeding the important exchange of knowledge that procede in society as a matter of course -- without reference to profit motive, but which result from a perpetual exchange of ideas which must pervade in a living culture.

Thus, such laws impact not only the interests of copyright/patent holders and their patrons, but also the free and open dissemination of knowledge in society. And this idea -- the idea that knowledge ought to be freely available to the members of society -- is at the core of very important movements within technology (the chief disseminator of knowledge in our era), such as keeping government out of the regulation of the internet, and especially the OpenSource (or "Free Software") movement -- a world-wide community of technology experts sharing this ideology, who have loosely collaborated in the development of the highly stable and "freely" available Linux Operating System platform.

I personally am an advocate of these ideals -- of the free and open dissemination of knowledge in society -- which is why I found the following blog entry from the Mises Economics Blog to be quite interesting.

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Copying, Not Trolling, Is “Fair Use”

Yesterday a federal judge in Las Vegas held that reproducing an entire article online can fall within the “fair use” exception to copyright law. In dismissing a copyright infringement case brought by a company called Righthaven, LLC — described by Wired as a “newspaper copyright troll” — Judge Philp M. Pro made two important findings. First, he rejected the standing of a third-party to bring an infringement suit based solely on acquiring the “right to sue” from the copyright owner, and second, he found that there was a strong presumption of fair use when materials are reproduced online for “noncommercial” purposes.

Righthaven, owned by attorney Steven Gibson, acquires newspaper copyrights for the express purpose of suing websites that reproduce the original newspaper’s material. As Judge Pro explained, the newspaper, in this case the Las Vegas Review-Journal, “assigned” its right to sue for infringement to Righthaven, subject to the newspaper’s right to revoke the assignment or direct Righthaven not to pursue a particular case:

Stephens Media [the Journal's owner] has the unilateral right, at any time, to terminate the Copyright Assignment and enjoy a complete right of reversion. These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.

Furthermore, Righthaven had no right to “exploit” the Journal’s copyrighted material except for bringing infringement lawsuits. Accordingly, Judge Pro said Righthaven could not maintain a copyright infringement lawsuit, since it was not the legitimate owner of the material at issue.

That said, Judge Pro further explained why, even if Righthaven had standing, this particular complaint must be dismissed. The defendant, Wayne Hoehn, had posted the entire text of a Journal article, with attribution, on the website madjacksports.com, a forum for people interested in sports handicapping. Hoehn was not the website’s owner, just a user. “It is undisputed that Hoehn did not and could not profit from posting” the Journal’s article, Judge Pro noted. Hoehn said he posted the article “to foster discussion…regarding the recent budget shortfalls facing state governments.” That alone suggests fair use, Judge Pro said.

Additionally, Judge Pro considered three other factors. First, the nature of the work suggested a broad allowance for fair use:

The Work is a combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. 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.”

Second, Judge Pro looked at the fact Hoehn reproduced the entire work rather than just part of it. The judge concluded, “[W]hile wholesale copying of the Work shifts this factor against finding fair use, wholesale copying does not preclude a finding of fair use.”

Finally, Judge Pro examined Righthaven’s argument that Hoehn’s posting the article online somehow “damaged” the commercial market for the Journal’s original article:

Righthaven argues that the market for the Work was impacted negatively because potential readers are able to read the Work on the Website and would have no reason to view the Work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011. Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm.

This last point may prove to be the most helpful in combatting future copyright trolling cases. The copyright lobby expends a great deal of energy maintaining, without evidence, that copying “diminishes” the market for a given work. In most cases just the opposite is true. The free movement of information allows for the near-limitless expansion of interest in a particular work or author. This is not a zero-sum game. And it’s good that some judges recognize as much.

(Copied "wholesale" from the following Mises Economics Blog article: Copying, Not Trolling, Is “Fair Use” [which is published under Creative Commons license, CC BY 3.0].)

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For those interested in OpenSource technology and the "Free Software Movement," the ideology behind this movement has been defined as follows:

“Free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.”

Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software. More precisely, it means that the program's users have the four essential freedoms:

• The freedom to run the program, for any purpose (freedom 0).
• The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms. Thus, you should be free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution, to anyone anywhere. Being free to do these things means (among other things) that you do not have to ask or pay for permission to do so.

You should also have the freedom to make modifications and use them privately in your own work or play, without even mentioning that they exist. If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way.

(GNU General Public License: The Free Software Definition)

The Electronic Frontier Foundation, a user's rights group I have followed since its inception in the early 1990's, describes today's issues as follows:

While early threats to our right to communicate came from the government, current threats come also from industry, as it seeks to control and expand current revenue sources at the expense of traditional fair use. The trend has been for industry to use a combination of law and technology to suppress the rights of people using technology. Nowhere is this more evident than in the world of copyright law, where the movie and recording studios are trying to dumb down technology to serve their "bottom lines" and manipulate copyright laws to tip the delicate balance toward intellectual property ownership and away from the right to think and speak freely.

(A History of Protecting Freedom Where Law and Technology Collide)

Both of these groups (EFF and GNU), and many others, including the Ludwig von Mises Institute, are worth the interested reader's time investigating these important economic and civil rights issues.