Judge: Posting 10 percent of news story on political forum is fair use

Electronic Frontier Foundation | The Times-Picayune

A March 9 ruling makes it harder for copyright holders to sue when their work is reproduced in online discussion forums. In a lawsuit concerning five sentences of a Las Vegas Review-Journal article posted on the forum Democratic Underground, U.S. District Court Judge Roger Hunt wrote in his final declaratory judgment that "the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose."

Earlier in the judgment, Hunt wrote that Democratic Underground's managers neither "posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed."

The backstory of this case is fascinating, as is a recent lawsuit filed by Fred Heebe, a Louisiana landfill baron who hired a forensic linguist to scrape The Times Picayune's Nola.com for comments by "Henry L. Mencken1951." That commenter has a rich history of responses to articles about local affairs, none of which celebrate Heebe's contributions to waste management.

Heebe is using the linguist's work in a civil defamation suit against the anonymous commenter, who, his suit implies, is actually Assistant United States Attorney Salvador Perricone.

UPDATED 3/15 @ 4:15 p.m.: U.S. Attorney Jim Letten confirms that Perricone is Henry L. Mencken1951. He will be recused from any matters on which he's commented on The Times-Picayune's website.

Henry L. Mencken1951 got Heebe's goat with a string of insults like "Heebe comes from a long line of corruptors." Indeed, if you skim Henry L. Mencken1951's 601 comments, you can find more than one opinion on Heebe's probity, as well as thoughts about the general crumminess of Tulane and President Obama's energy policy.

Heebe is a target of a federal investigation of a landfill closure, and many of Henry L. Mencken1951's comments, the suit says, betray gobs of legal know-how. According to the lawsuit, the comments "reveal a level of knowledge about the inner workings" of the U.S. Attorney's Office "well beyond what could be expected of even the most diligent outside observer."

More "evidence": Perricone was born in 1951, and he uses alliteration and words like "coiled," "dubiety," and "redoubt" in pleadings. The suit says Heebe's linguist found these and other similarities between Henry L. Mencken1951's language and Perricone's.

There have been other cases where courts have taken up the gnarly issue of Internet commenters on news sites. Advance Internet settled a suit at the end of 2011 after The Plain Dealer in Cleveland ran a story that said someone using a local judge's email address had commented on its site and others. And the Pantagraph of Bloomington, Ind., agreed to disclose the identity of a commenter who angered a local business.

Heebe is not asking The Times-Picayune to release any data it may have collected on Henry L. Mencken1951. He'd like to subpoena Perricone and fellow Assistant U.S. Attorney James R. Mann to ask them about whether they've engaged in Internet commenting. || Related: Cleveland.com embraces its anonymous commenters (Poynter)

  • Andrew Beaujon

    Andrew Beaujon reported on the media for Poynter from 2012 to 2015. He was previously arts editor at TBD.com and managing editor of Washington City Paper. He's the author of the 2006 book "Body Piercing Saved My Life," about Christian rock and evangelical Christian culture.


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