Why Fair Use Should Be Front of Mind for Copyright Holders

Lora Bentley

A couple weeks ago, I outlined the fair use limitation on copyright. The third and fourth factors that courts must consider when determining whether a given use of copyrighted material is fair are as follows:

  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.


Early this week, a federal court in Nevada ruled that copyright troll Righthaven did not have standing to file a copyright infringement suit against a blogger who posted an entire Las Vegas Review Journal article on a website for purposes of promoting online discussion because Righthaven did not actually own the copyright in question. The blogger won a motion for summary judgment, and Righthaven was out of luck.

Interestingly, even though the court did not need to proceed to a fair use analysis, it did so anyway, and found that the blogger did not violate the newspaper's copyright, primarily because the posting did not diminish the commercial market for the article.


Because the case was decided on the issue of standing, the part of the opinion discussing fair use is not binding precedent. It is, however, instructive of how this particular judge may evaluate the issue down the road, should similar circumstances show up again. Moreover, this judge is not the first to take this line of thought where fair use is concerned. Remember Professor Eric Goldman's discussion of Righthaven v. Jama? Sometimes even republishing an entire article is considered fair use.


That fact, and the concept of fair use in general, should be front of mind for businesses or individuals who hold the copyrights to online content especially. If a copyright holder sends a Digital Millennium Copyright Act takedown request and a court later determines the defendant's use of copyrighted material was fair use, the copyright holder can be liable for damages to the defendant. According to Wired coverage of a case from 2008: [A]n allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim.

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Jun 23, 2011 11:21 AM Peter Friedman Peter Friedman  says:

Suggesting that sending a takedown notice for the unlicensed posting of an entire copyrighted article might constitute the kind of bad faith action that the judge found in the Stephanie Lenz case is rather far-fetched. In that case the suggestion of infringement was absurd -- the takedown notice was directed at a video of a baby dancing while in the background, barely audible, a few seconds of Prince's "Let's Go Crazy" was playing.

In contrast, the argument that the absence of commercial harm to the market for the copyrighted work is alone grounds to claim fair use is plausible, but certainly strained. To suggest it's strong enough that it would support a claim that a takedown notice for infringement directed at the unauthorized use of the entire copyrighted work would be, I would suggest, absurd.

Jun 24, 2011 11:03 AM Garret Mckenzi Garret Mckenzi  says: in response to Peter Friedman

I remember hearing about this case and was happy with the results. It seems that in this day of age changes occur quickly, this case was clear and simple. The tools and lengths that people resort to is astounding. Taking care of security and keeping on top of the society with tools like activclient can really make a big difference.


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