In the latest twist, Judge Pro of US District Court of Nevada has ruled that the fact that an entire work may be copied, while relevant to the issue of fair use, is not determinative that the use is unfair. Actual harm must be shown:
Merely arguing that because [defendant] 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.This may not be good news to many copyright owners - including perhaps those whose works are copied in the educational sector - whether in the USA or Canada...
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.