Fed Judge - Posting Entire Editorial In Online Comment Is Fair Use
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
This is a copyright infringement action brought by Plaintiff Righthaven LLC (“Righthaven”) against Defendant Wayne Hoehn (“Hoehn”), who is and was at all relevant times a registered user and content contributor to the website (the “Website”). (Pl.’s Resp. To Mot. For Summ. J. [“Resp.”] (Doc. #13).) Hoehn has never been employed by the Website’s owner and operator. (Id.) On or about November 29, 2010, Hoehn displayed an unauthorized reproduction of a copyrighted literary work entitled “Public Employee Pensions. We Can’t Afford Them” (the “Work”) as part of the content contributed by him to the Website. (Id.) In his reproduction, Hoehn attributed the source of the Work to the Las Vegas Review Journal (“LVRJ”). (Compl. (Doc. #1).) Hoehn avers that he did not post the Work for profit and that there was no mechanism for him to profit by posting the Work on the website. …
Fair use is a defense to use of a copyrighted work which otherwise would be copyright infringement if the work is used “for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research.” 17 U.S.C. § 107.
Factors to be considered when determining fair use include-
(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
1) The Purpose and Character of the Use
The first factor of fair use is the purpose and character of the use. 17 U.S.C. § 107. Noncommercial, nonprofit use is presumptively fair. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984). … It is undisputed that Hoehn did not and could not profit from posting the Work. Under Sony, noncommercial/nonprofit use is presumptively fair. Additionally, this factor focuses on the purpose or character of the new work. Here, Hoehn posted the Work as part of an online discussion. Hoehn avers he posted the Work to foster discussion in a specific interactive website forum regarding the recent budget shortfalls facing state governments. This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. There is no genuine issue of material fact that Hoehn’s noncommercial use of the Work for comment favors a finding that the use was fair.
2) The Nature of the Copyrighted Work
The second factor is the nature of the copyrighted work. 17 U.S.C. § 107. Generally, “creative works are closer to the core of intended copyright protection than informational and functional works.” Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997) (quotation omitted). “The scope of fair use is greater when informational as opposed to creative works are involved.” Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1153-54 (9th Cir. 1986). … The Work is an editorial originally published in the LVRJ [Las Vegas Review-Journal]. 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.” Dr. Seuss, 109 F.3d at 1402. Rather, because the Work contains a significant informational element, the scope of fair use is greater than it would be for a creative work, but likely less than it would for a purely informational work. However, this factor is not terribly relevant in the overall fair use balancing, and the lesser creative element of the Work lessens the impact further. Accordingly, this factor must be balanced with the other fair use factors to determine if Hoehn’s use of the Work was fair.
3) The Amount Used
The third factor of fair use is the amount of the use of the copyrighted work. 17 U.S.C. § 107. … It is undisputed that Hoehn posted the entire work in his comment on the Website. … wholesale copying does not preclude a finding of fair use. The three other factors need to be balanced to determine if fair use is appropriate.
4) The Effect Upon the Potential Market for the Work
The final factor to be weighed is the effect on the potential market for or value of the copyrighted work. 17 U.S.C. § 107. … It is undisputed that Hoehn’s use of the Work is noncommercial. Challenges to noncommercial use require a showing that the particular use is harmful or negatively impacts the potential market for the copyrighted work. … Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm. Therefore, Righthaven has not presented evidence raising a genuine issue of material fact that the fourth factor favors a finding of fair use.
There is no genuine issue of material fact that the above factors favor a finding of fair use. Of the four factors, only the fact that Hoehn replicated the entire Work weighs against a finding of fair use. Hoehn used the Work for a noncommercial and nonprofit use that was different from the original use. The copyrighted Work was an informational work with only some creative aspects, and the Work was used for an informational purpose. Righthaven did not present any evidence that the market for the Work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the Website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the Work was fair and summary judgment is appropriate.
http://www.dmlp.org/sites/citmedialaw.org/files/2011-06-20-Order%20Granting%20Mot%20to%20Dismiss%20in%20Righthave%20v%20Hoehn%20Order.pdf
