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Published Tuesday, March 22, 2011 | 1:12 p.m.
Updated Tuesday, March 22, 2011 | 2:24 p.m.
Neither adverse publicity nor unfavorable court rulings are deterring copyright enforcer Righthaven LLC of Las Vegas from filing new lawsuits.
On Monday, it filed at least its 251st lawsuit. Again, this was in Denver over the Denver Post TSA pat-down photo. This lifts to at least 47 the number of suits over that photo.
The latest defendant is Erin Breig, whom Righthaven says owns the website hoodtmz.blogspot.com.
"Ms. Breig reproduced an unauthorized copy of the photograph entitled: 'TSA Agent performs enhanced pat-downs' ... and displayed said unauthorized copy on the website," the lawsuit charges.
As usual, Righthaven in its lawsuit demands $150,000 in damages and forfeiture of Breig's website domain name.
A court exhibit in the lawsuit shows the photo was posted with commentary suggesting a passenger was arrested after becoming sexually aroused during a TSA pat-down.
This commentary appears in several Righthaven lawsuit exhibits and didn't originate with the Denver Post. It appears to have originated with the parody website deadseriousnews.com.
Contacted about the lawsuit, an individual who would identify himself only as "Michael" said "Erin Breig" is a name he made up for the website.
"I was playing Scrabble on my phone and the word 'Breig' came up, so I thought it was interesting," he said.
Michael said he found the photo at issue on the Internet at a site he couldn't recall, but that it wasn't the Denver Post.
Michael said he was unaware Righthaven or the Denver Post had anything to do with the photo or that he needed to obtain permission to post it.
"Just to post a photo I have to get permission?" he asked. "Amazing."
***
Righthaven watchers are chiming in on last week's ruling by a federal judge in Las Vegas to throw out a copyright infringement lawsuit on fair use grounds.
The ruling was noteworthy because it involved the unauthorized re-posting of an entire Las Vegas Review-Journal story.
Commentators including Joe Mullin at paidContent.org noted this could have far-reaching consequences for the newspaper industry if the ruling is upheld.
The judge, James Mahan, raised eyebrows by commenting that the 33-paragraph story at issue was primarily informational as opposed to being creative.
Wendy Davis, writing at Online Media Daily, talked to David Ardia of the Citizen Media Law Project. He said the story at issue was creative in that it was an investigative piece involving multiple document reviews and interviews with multiple sources.
Another frequent commentator on Righthaven, Mike Masnick at techdirt.com, wrote that the ruling "spells trouble for Righthaven, which would lose the entire basis for its legal campaign and business model for the vast majority of its cases."
At the Electronic Frontier Foundation, which participated in the case by providing a friend of the court expert, Senior Staff Attorney Kurt Opsahl commented in a blog post that Mahan's forthcoming written order "will help set a persuasive precedent for other copyright troll cases."
"The copyright troll's business model is to search for blogs and websites that include a newspaper's material, acquire the right to sue on particular articles from the paper and then file a lawsuit without any prior notice to the defendant. Righthaven seeks the maximum damages under the Copyright Act as well as control over the domain name, but is willing to settle for four-figure sums that seem calculated to be less than the cost of defense. Meanwhile, the actual articles that Righthaven sues over remain available for no charge on the newspaper website," Opsahl wrote.
***
In another Righthaven lawsuit over the Denver Post TSA pat-down photo against conservative Fargo, N.D., radio personalities Rob Port and Scott Hennen, Minneapolis attorney John Hinderaker commented on Righthaven in a Forum of Fargo-Moorhead story.
"What these people are trying to do is extort a very modest amount of money from everybody they sue," he said.
Righthaven, however, maintains its lawsuits are necessary to deter widespread online infringements of newspaper material.
***
The company's investments in court costs and legal fees, however, didn't pay off when two suits were dismissed Monday by a federal judge in Las Vegas.
A Righthaven lawsuit against former mob figure Anthony Fiato, who has been a source for Review-Journal columns, was dismissed after Righthaven failed to show Fiato had been served with the suit.
The complaint against Fiato alleged he has a "Hollywood goodfella" blog that focuses on mob activity around the country and displayed without authorization Review-Journal columns and stories about mafia activity in Las Vegas.
U.S. District Judge Gloria Navarro dismissed the case without prejudice, meaning Righthaven can try to revive the suit if it desires.
Another Righthaven suit against Ronald Baxter, Buy Dog Beds and TEB Media was dismissed without prejudice Monday by Navarro for the same reason. That lawsuit involved a Review-Journal story on a slain store clerk that allegedly was posted on the www.buydogbeds.org website.
Their quick buck business model is not going to allow for all these extra costs.
They better get their act together or rethink their shake down plans.
Righthaven is in for a rude surprise when it comes to trying to confiscate the "domain name" hoodtmz.blogspot.com.
The actual domain is blogspot.com, which the defendant has no control over in any way. The website URL is a sub-domain, that is not registered other than as a DNS record pointing to an IP address. The request for transfer of the domain name is worthless.
Also, Blogspot is a service provided by Google, and has a clear notice of policy and procedure to follow for copyright violatins. You can find the procedure to report a violation here: http://www.google.com/support/bin/reques...
Righthaven was required by law to send a take down notice first before suing.
This one could be interesting indeed if the defendant is on the ball and hires competent representation.
Can you say DEATH THROES???
Sure. I knew you could.
Do you hear that gurgling noise, boys & girls???
That's called a death rattle...
"Righthaven was required by law to send a take down notice first before suing."
You can alway sue the person that posted the copyright material.
If a staff person of the website or the owner of the website posts the offending copyright material there is no safe haven for that either.
However, if a causual user post copyright material on a blog and if that blog filed Safe Harbor papers with the US Copyright Office then that would require a take down notice.
The copyright owner can still sue the causual user directly in that case but can't sue the blog owner unless he/she ignores the takedown notice.
As for Erin Breig, whom Righthaven says owns the website hoodtmz.blogspot.com, in the lawsuit it says, "Ms. Breig reproduced an unauthorized copy of the photograph entitled: 'TSA Agent performs enhanced pat-downs' ... and displayed said unauthorized copy on the website,".
So there is no safe harbor for that. Erin can be directly sued.
Google is not being sued anyway.
According to the U.S. Copyright Office (Public Catalog), Righthaven has recently increased its copyright holdings to 195. Apparently they've scoured archived articles from Stephens Media, picked the ones that they've found on blogs and other web sites, and are preparing for a new wave of lawsuits. Some of the articles date to 2008, so they're backtracking.
American Justice Dot Org
http://www.americanjustice.org
Another one caught by the Deadseriosenews honeypot. It may be time for Righthaven victims to file a suit against this site since Righthaven won't. If they file suit then discovery could determine if Righthaven has any connections with Deadseriousnews. I have emailed Deadseriousnews about this matter and that people were being sued because of thier site. I have never received a response.
SgtRock,
If the photo in question is a reproduction of the one on deadserious, then Righthaven could still be barking up a tree since thumbnails have been held to not be infringing. There is no clear standard of what size a thumbnail is, but the image I saw on deadserious is noticeably smaller than others I see when doing a Google search.
The Sun seems to think anything less than 300px wide that links back to the original, full-size image is okay.
However, it is not even clear if a link back is required for a thumbnail. It certainly is the polite thing to do.
No, Righthaven is starting to get burned by running up against people who have the will to challenge them.
It has been remarked that the safe harbor is there to protect service providers from third-party violations. In the of Blogspot/Blogger/Google the boundaries are fuzzy at best.
But I would dearly love to see Righthaven try to confiscate a domain (blogspot.com) owned by Google. I am astounded at the lack of knowledge displayed by making that request in this case. This gives strong support to the people who say Righthaven makes this demand purely for purposes of intimidation and that it is not supported in law.
American Justice
Every case Righthaven now files caries tremendous risk. With their failures in the courts they may have lost much of the fear factor that once existed. More people are fighting them now and they cannot afford than much longer. The fact they are scouring old articles is a good indication they are getting desperate. Just like the idea of suing commenters was a desperate act because it cannot be proven who actually left a comment.
I also have a feeling the Brian Hill case is going to neutralize the TSA image because the judge will rule that Colorado is an inappropriate venue which will mean Righthaven will have to start hiring lawyers to fly all around the country to the jurisdiction of the defendants.
Ken,
I don't think they have a conscious, at least not a human one. They'll move on from newspaper to newspaper finding bait to hook bloggers and others. I'm hoping their reputation will precede them and no one will want to do business with them. That's up to us to continue to thwart this so-called business model.
I think Righthaven has already received a bad reputation. I don't other newspapers clammering for their "service" even those in Stephens media and News Media Group. Infact I believe the Salt Lake Tribune was ready to deal with Righthaven because a couple of months ago they posted a warning similar to the one posted by the Denver Post right before Righthaven started filing suits. There has been no Salt Lake Tribune lawsuits as of yet but I suspect that Utah would take a very dim view of the Salt Lake Tribune if they began dealing with Righthaven.
"It has been remarked that the safe harbor is there to protect service providers from third-party violations. In the of blogspot/Blogger/Google the boundaries are fuzzy at best."
It is not fuzzy at all. Just ask the question: Who is getting sued or the potential target of a lawsuit?
If it is the service provider like Google that might get sued and they had filed for Safe Harbor status and one of their users violated copyright laws then a take down notice is required.
Let's say you have a blog where people comment everyday. You filed Safe Harbor with the US Copyright office. I go to your site and post all of a LVRJ story. Righthaven gets the ownership of the copyright. They would have to send you a take down notice. However, they could sue me directly.
Let's say you have a blog where people comment everyday. You filed Safe Harbor with the US Copyright office. You go to your own site and post all of a LVRJ story. Righthaven gets the ownership of the copyright. There is no safe harbor for that. Righthaven can sue you directly.
"This gives strong support to the people who say Righthaven makes this demand purely for purposes of intimidation and that it is not supported in law."
Everyday there are lawsuits being filed and they are asking for monetary awards. The plantiffs sometimes ask in the suit attach to known property of defendent that they know defendent has in their possession. It is a common tactic. It is nothing new. It does not mean that court will agree and force the defendent to turn over the property if they lose. However, if the denfendent loses and does not pay the monetary award then most likely at some point the court will award the plantiff the property.
You miss the point, there is no such registered domain name as "hoodtmz.blogspot.com". I would argue that because it is impossible to transfer registration of something that can not exist, that Righthaven was making such a demand purely for the intimidation factor it would have and that Righthaven was ignorant of the nature of what they were asking for.
"You miss the point, there is no such registered domain name as "hoodtmz.blogspot.com". "
I skipped over that. Righthaven probably will not get awarded that in court. However if blogger who runs hoodtmz.blogspot.com loses then Righthaven could ask the court to notify Google that the blogger lost a copyright infringement case and Google should bar that blogger from their system.
The fact that Righthaven has yet to be awarded a domain name and no judge has yet to even take that request seriously and the fact that Righthaven has yet to even press the issue in court proves this is simply an intimation tactic.
SgtRock,
Something else you have skipped over is the doctrine of "clean hands in equity." Why is that?
Brian Hill's attorney has specifically brought that into play now.
In Old English law a case was automatically thrown out if the plaintiff did not have "clean hands" in such an action, *even if the defendant would otherwise lose the case*.
Like Righthaven, you seem to consistently look at only the letter of the law and ignore the spirit. Thankfully our judicial system gives judges the freedom to look at both.
Rock
According to bloggers terms of use any alleged infringement by a Google Subscriber Google themselves must be sent a take-down request and Google agrees to have the infringing material removed.
http://www.google.com/support/bin/reques...
"Regardless of whether we may be liable for such infringement under local country law or United States law, our response may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers.
Righthaven may very well be fighting against Google lawyers on this one. I would put my money on the Google layers. I am also passing this information on to this new victim and Google that Righthaven is trying to sidestep their DMCA safe harbors protection.
Chunky says:
Fighting back and dismissals will take their toll on Righthaven in the long run.
Don't expect them to cut back or be deterred since this business model is their only method to create revenue. They want the easy bucks churned out like a law-mill. Without this what would they do to earn a living?
Even if they do get smacked down for their approach to copyright they'll just ooze back out from some other rock.
That's what Chunky thinks!
Sarge, why have no other newspapers participated in this sort of litigation? I ask this with the assumption you have remarkable knowledge of the law and the newspaper industry.
Well actually, Rock, infringement under the law is not theft. Therefore, no one has stolen anything. No where in Righthaven's lawsuits have they alleged that anything was stolen or there was a theft. You will not find those words in any of the lawsuits. The copyright holder has not lost possession of his copyright, physical or otherwise. That may be all semantics to you, but it's not theft.
Good point. If it is theft then why aren't the "thieves" being rounded up and put in prison? I am sure Rock would love that. 20 years hard labor for posting a stinking image.
"We're Not Gonna Take It"
Twisted Sister - 1984
I wonder if RH got releases from the government workers in the picture in question.
"We're Not Gonna Take It"
Twisted Sister - 1984
The song was written by the WHO in 1968.
Twisted sister...........sheesh!
" I am also passing this information on to this new victim and Google that Righthaven is trying to sidestep their DMCA safe harbors protection."
You have little flaw in your statement. Google is not being sued.
You are correct that Google is in a Safe Harbor.
Safe Harbor never extends to the actual infringer.
It only extends to the provider of the service.
"Contacted about the lawsuit, an individual who would identify himself only as "Michael" said "Erin Breig" is a name he made up for the website."
This is just too good. I would dearly love to see this one come to trial, there are so many interesting questions of law.
For AmerJustDot....the Bible says not to trespass.
The Bible also to ask God to forgive you for your trespasses as you forgive those who trespass against you.
Google in its terms of use states that will turn over personal information when required by court orders.
I suppose you wouldn't know about anonymous proxy servers. On the other hand, few people are so paranoid as to use them for *every* access.
To forgive a person the offending person has to acknowledge wrong-doing and offer pentance.
The courts could order Google to drop the blog account.
"To forgive a person the offending person has to acknowledge wrong-doing and offer pentance." - SgtRock
How many of Righthaven's victims (for lack of a better word) have said they would not have responded to a simple take down notice? Even after hearing the details from Brian Hill they still wanted $6,000.00 to make it go away. Doesn't sound like forgiveness to me. Especially after Righthaven complained that Democratic Underground and EFF's counterclaim was only intended to drive up Righthaven's cost of defending against it.
In the words of the great Bard, "BULLS#IT!"
I far as I know Brian Hill has not accepted fault and he should make a counter offer for monetary award to Righthaven.
I don't feel sorry for website owners that take content off another site to use on their own site.
They are too lazy to create original material to draw traffic to their own site.
So instead, they see and lust for content that somebody else has spent time or money creating.
They could do the right thing and just link to the interesting content.
Nope....they decide to copy and paste it.
It is wrong.
When they get caught they whine about life being unfair.
It is unfair for somebody to work hard creating interesting content just for some lazy person to steal it.
"They could do the right thing and just link to the interesting content." - SgtRock
Brian Hill says he did link to what he thought was an original story. As it turns out what he linked to was a parody. This is where the concept of "good faith" comes into play. Brian Hill will not admit wrongdoing because he thought he was in fact following good practice.
SgtRock, you seem to focus solely on black and white when in fact there are many shades of gray present.
Again, I must press you on the concept of coming into equity with clean hands. I don't see how Righthaven can sustain such a claim.
It is clear that their demand for the forfeiture of a non-existent domain name indicates that they are little more than a digital protection racket.
Now you are shoving a good dose of BS.
Did he link? Yes according to reports.
Did he copy the whole damn image and post it own his own site in a pristine manner? Yes acccording to reports.
The link has absolutely no value or a tiny value.
Very few people would see the full blown image have ANY desire to click and see AGAIN the same full blown image.
So people who do that are lazy.
They don't want to put out the effort create something original or pay money for it.
So lust after something that somebody else did.
They post it in its full form or almost full form.
The honorable way is to post a slim down version of the original. Give credit to the source. Link to the source.
Do they want to that?
Hell no!!!! That would encourage people to leave their site and go and dwell on the source cite. They are selfish and abusing the system.
They are pirates.
There is not much grey at all.
Be a decent person.
Do decent things like don't copy and paste all or most of the original. Link and cite the source.
Don't steal.
That would put Righthaven out of business.
SgtRock,
Why don't you post a link to the actual image he used? A bare link would not be a problem.
Go ahead.
If you admit that he linked to what he thought was the original story then you should not have a problem with a link to an image.
If nothing else, post a link to the actual exhibits in the suit so we can judge for ourselves. Can you produce an exemplar of what his page looked like? You've been pretty good at posting links to other legal opinions or rulings, how about this?
You have to purchase the exhibits from this site.
http://automation.rfcexpress.com/lawsuit...
I did not see a free version of those exhibits.
You didn't look very hard then, the third item that comes up in a Google search is this: http://www.scribd.com/doc/51304487/Brian...
And again, I ask you, why do you continue to avoid the question of "clean hands in equity" when it has now been brought up explicitly by a defendant's attorney? And this is not the first time, EFF also mentions it if I am not mistaken.
Righthaven's actions are repugnant to our judicial system and common decency.
That list of exhibits don't list an image of Hill's website. I am certain if you purchased the exhibits from the other site then you will see an image of Hill's website.
Saying someone has unclean hands and proving it are two totally different things. I have seen no proof that Righthaven has unclean hands.
Do you have any proof?
Rock
So you don't think people should defend themselves in a lawsuit no matter how frivolous? They should just roll over and settle? In country we have a right to defend ourselves, especially from powerful oppressive corporations.
Righthaven is probably more than willing to negotiate more.
But if Brian wants to move on to all-out legal battle then that is his right.
Righthaven is not going to wave the white flag either.
If he was my friend and I was worried that an all-out legal battle would impair his health then I would be encourage him to work with Righthaven and continue to make counter offers and try to end the case so that he could move on with his life.
But what the heck, if his friends and family want to sacrifice Brian on the alter of legal war in pursuit of a holy war against Righthaven then so be it.
I just would not want to have friends or family like that.
Defeating Righthaven is not more important than the health and happiness of my friends and family.
I sorry to inform you Snow White but life is not always fair and it is sometimes not a bowl of cheeries. Sometimes we have to accept the lumps of coals (even ones of our own doing) that are thrown our way and figure out a way to move one.
@boftx:
"And again, I ask you, why do you continue to avoid the question of "clean hands in equity" when it has now been brought up explicitly by a defendant's attorney? And this is not the first time, EFF also mentions it if I am not mistaken.
Righthaven's actions are repugnant to our judicial system and common decency."
boftx, you have captured the essence of the debate, RIGHT THERE...
Defending the indefensible...
sgtCrock, your work will NEVER BE DONE,
nor your battle ever won.
The courts are slicin' & dicin' the ridiculous premises under which Righthaven/LVRJ sue, or threaten to sue, to collect "damages" from such heinous criminals as Brian Hill.
The "Court of Public Opinion" has rendered it's verdict;
Squirmy Shermy, the Least Ethical Man in Journalism, and his lil' sidekick, Shyster Steve Gibson, are running a SHAKEDOWN SCAM on unsuspecting web bloggers, (for the most part) and NO REASONABLE PERSON with ANY AMOUNT OF COMMON SENSE condones their actions nor agrees with the premise upon which they built the con...
The "Marks" have fired back, and that will soon bring an end to this sick little confidence game, once and for all.