The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed. I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.
At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.
This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:
… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).
But that’s first glance. Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing. According to the Sun, we know for example that the defendant, Center for Intercultural Organizing (CIO), used the Las Vegas Review-Journal article for educational purposes – a noncommercial use often favored under fair use analysis. Judge Mahan also ruled that the use of the article did not harm the market for the article (another fair use factor) – although without the written Order it’s difficult to understand how a freely available full copy would not harm the commercial market. The Sun did quote Judge Mahan as saying that “The market (served by the CIO) is not the [Las Vegas Review Journal’s] market,” a comment which raises more questions than it answers.
And perhaps most importantly, Judge Mahan found that the Las Vegas Review Journal article was primarily factual rather than creative. The article – shown here in a copy of the court filing – reports on the incidence of Las Vegas Police misdemeanor arrests leading to immigration charges also being filed, including deportations.
This is almost certainly the most controversial part of the ruling, since it characterizes reporting on police arrest statistics – public records – as just that: public records. This goes to the very subject matter of copyright, namely protection for “original works of authorship fixed in any tangible medium of expression” (17 USC §102). Facts and news, words and short phrases and titles tend not to get copyright protection. The unique expression of otherwise non-copyrightable subject matter may get protection, although it is the expression rather than the facts themselves that gains the protection.
On the defense side is fair use, which as a threshold matter must overcome the rights of the copyright owner to protection. Obviously when those rights are weaker, the fair use case is easier make. In this case, Judge Mahan seems to be saying that police reporting, if protectable by copyright, deserves only weak protection. Putting the merits of that view aside, that of course, goes to the second fair use factor under 17 USC §107, “the nature of the copyrighted work”. In brief, less creative works garner less copyright protection, and are more vulnerable to a fair use claim.
The Las Vegas Sun coverage of the case, from March 18, 2011, can be found at this link.
Add Comment