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

Rich Fiscus
6 Dec 2011 14:43

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: