The RIAA jumps into a Las Vegas lawsuit to argue against fair use

The RIAA jumps into a Las Vegas lawsuit to argue against fair use
Always on the lookout for ways to push back against the recognition that any unauthorized copying is legal, the RIAA has filed an amicus (friend of the court) brief in a copyright infringement case brought by a Las Vegas firm.

Righthaven LLC is a company formed by lawyer Steve Gibson and the publisher of the Las Vegas Review-Journal. Its sole purpose was to purchase the right to bring copyright infringement lawsuits over online copying of newspaper articles.

When the terms of Righthaven's agreements with LVRJ and other newspapers was detailed in court filings several months ago, judges began dismissing their suits for a lack of standing. That's because the right to sue is an extension of the exclusive rights granted to copyright holders, and not a separate right which can be transferred separately.

That's not what the RIAA is arguing against. Instead their filing is in opposition to a ruling in one of Righthaven's failed lawsuits in which the judge stated it was possible for the republication of a copyrighted article, in its entirety, by a non-profit organization could be fair use.

In fact this is not a new concept at all. It was a key point raised by the Supreme Court in the most famous copyright case ever - the Betamax Case. In that case, the majority opinion read:

although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.

In fact, they were specifically dealing with the reproduction of an entire work in its entirety in that case, making the ruling in Righthaven's suit somewhat redundant.

In their appeal, Righthaven lawyers argue the judge ignored their arguments, which they claim fulfilled the requirement in the Betamax case of proving the likelihood of harm. They also claim the judge ruled prematurely, failing to allow discovery before hand.

Those issues are not what the RIAA, along with the Association of American Publishers (AAP), is arguing against either. Instead they are weighing in (both for and against Righthaven ironically) with an argument that there is no standing to sue as shown in other cases, and therefore the court is prohibited from ruling on fair use.

Their reasoning is that Stephens Media, owner of the LVRJ and the article in question, are not a party to the lawsuit, and therefore not allowed to present their own arguments against fair use.

In fact, while the Righthaven appeal could go either way, the RIAA/AAP argument appears more likely to succeed. But there's a bigger point to take away from this. Very few things scare organizations like the RIAA more than fair use.

While the ability to make copies makes their existing products more valuable, it also makes it harder to sell you a new copy of the same content in a new format. Publishers, on the other hand, are horrified by any ruling which sets a standard suggesting a complete copy of any work could be fair use.

Really, it's a symptom seen throughout the range of industries used to relying on the expense of reproduction as a barrier for competition. Copyright worked well as the basis for a business model when few people had the resources to produce competing products.

It's those outdated business models, not fair use, which are at the root of any financial problems the recording and publishing industries face. Throwing money at infringement lawsuits does nothing to address that.

You can read both Righthaven's appeal and the RIAA/AAP amicus brief below:

Written by: Rich Fiscus @ 6 Dec 2011 14:43
copyright infringement Lawsuit RIAA Righthaven fair use
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  • Mysttic

    Sounds to me like they picking at straws here, hopefully the judge will laugh the RIAA out of court.

    6.12.2011 16:37 #1

  • llongtheD

    Originally posted by Mysttic: Sounds to me like they picking at straws here, hopefully the judge will laugh the RIAA out of court. Oh how I wish that were true. But we both know the "judge" will get an "envelope" and his opinion will be persuaded.

    6.12.2011 21:05 #2

  • KillerBug

    RIAA/MPAA are just going crazy lately. They won't be satisfied until there are laws against using a PC.

    7.12.2011 03:09 #3

  • LordRuss

    I hate double speak with a passion... Then to have the RIAA come in & ride on the coat tails of triple/quadruple speak is just begging to have someone shot in the head. Meaning, if you can't get your argument won in the first person, you lost. Tuck your tail between your legs, trot home & cry over a bowl of puppy shit shit. Your mommy will either love more or less accordingly.

    I'm over this "make a win out of it at any cost" society we've become. Somebody rises from futility & makes something of themselves, but a bunch of leeches want a free ride. If he/she doesn't play along they get tore down by legal means or murdered by the same poor suck asses of the slums who refused to make the same decisions early on.

    MPAA/RIAA, Crack druggy fanatic gangstas grasping at last ditch effort straws for easy money off the backs of people who already have barely enough to eat... can you tell the difference? Just barely.

    7.12.2011 11:58 #4

  • KillerBug

    Originally posted by LordRuss:
    MPAA/RIAA, Crack druggy fanatic gangstas grasping at last ditch effort straws for easy money off the backs of people who already have barely enough to eat... can you tell the difference? Just barely.
    There is a difference...drug dealers are far more honest. Also, drug dealers generally don't exploit people who don't use drugs. RIAA and MPAA regularly exploit people who are not members by issuing takedown requests against their official uploads, and by making people so fed up with the industry that they won't buy from anyone. I know it is a major pain for me to buy music...usually I find a CD I want, look at the back cover, see, "Sony" or some other RIAA supporter, and have to skip buying that CD. If the RIAA went away I would probably go broke buying all the CDs that I can't currently buy with a clean conscience.

    7.12.2011 12:19 #5

  • LordRuss

    Originally posted by KillerBug: There is a difference... I was being factious, but I get your point. Even though I could juxtapose a bunch of similarities as to how the entertainment industry has 'hooked' the global community on their wares similar to a drug, you're right; the violence & justice of the drug trade is left in their yard (if you will).

    However, you will have to secede a bit in that even in that trade it does spill out into innocent people. Those undeserving. And like the drug the drug cartels of Mexico, it's starting to get way the f'k out of control.

    Law enforcement seems to think shooting most of those individuals on sight (in a given situation) is a good way of dealing with them. Seeing as they're a localized nomadic, heavily armed outfit, I can see how that might be a viable solution.

    The RIAA/MPAA & associated cling-ons seem to be global & corporately financed to the n-th degree. Their weaponry (at the moment) is the judicial system & they're using it without prejudice, just as an outlaw would. When do we get a Dirty Harry of the lawyers to step up & start .44 magnum-ing these bastards out of the system?

    I wish I could, but I only know the language of profane.

    7.12.2011 12:51 #6

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