The implied license and fair use defenses raised by the operator of an online forum are meritorious defenses that warrant reopening a default judgment for copyright infringement, a district court ruled. Examining the statutory fair use factors, the court concluded that it could be found that the third-party user who posted a complete copy of an online news article did so "for the non-commercial purpose of sharing information and not for the purpose of making a profit for the reader or the site," thus the purpose and character of the use factor could favor the operator. The court also concluded that because the article was "primarily informational," the nature of the work factor could be found to favor the Web site owner. The court concluded that the effect of the posting on the market for or value of the original work was a factor that raised issues that would have to be resolved later in the litigation. The court further concluded that the operator had made a "plausible argument" that the conduct of the original copyright owner of the news article in posting it on the Internet for free, encouraging readers to share the article with others, and permitting users to "right-click" and copy it, gave rise to an implied license.
Righthaven LLC v. Klerks (D. Nev. Sept. 17, 2010) Download PDF
Editor’s Note: Righthaven is an entity that acquires copyright rights in online content for the purpose of bringing similar copyright infringement actions. See http://www.righthavenlawsuits.com/. It appears that the Web site owner did not post any DMCA-compliant notices on the site. See also the rulings in other Righthaven lawsuits discussed below