20 Comments
Facebook
Fark
Digg
Reddit
Stumble
Thursday, March 24, 2011 | 10:32 a.m.
Related Document (.pdf)
For Las Vegas copyright enforcer Righthaven LLC, today's news so far is pretty much the same story as Tuesday: A new lawsuit has been filed, while two more lawsuits were dismissed after Righthaven failed to show the defendants were served.
The latest defendants to be hit with a lawsuit alleging copyright infringement are Dogster Inc. and two individuals allegedly associated with the website dogster.com, Ted Rheingold and Maria Goodavage.
This is another lawsuit over the Denver Post TSA pat-down photo and Righthaven again demands in Wednesday's complaint in U.S. District Court for Colorado that the defendants pay $150,000 in damages and that their website domain name be forfeited to Righthaven.
A court exhibit indicates the photo was posted on the website with some commentary suggesting trained dogs could work as an alternative to intrusive TSA pat-down searches. The website post did not credit the Denver Post as the source of the photo, the exhibit shows.
A request for comment was left with Dogster.
This suit lifts the Righthaven lawsuit tally to 252 overall since March 2010; and to 48 over the pat-down photo.
Separately, a Righthaven lawsuit over the pat-down photo against Tamer Mahrous was closed after the parties reached a confidential settlement.
***
Two more Righthaven lawsuits were dismissed without prejudice this week by U.S. District Judge Gloria Navarro.
They involved material from the Las Vegas Review-Journal and defendants Michael Easton and Puget Sound Radio in one case; and defendants Ezekiel Kennard, Marc Lee and Serkadis.com in another case.
They were dismissed after Righthaven didn't show the defendants were served with the complaints against them.
Unless Righthaven can find a way to revive these lawsuits, it appears its investment in these lawsuits in terms of legal fees and court costs will have to be written off.
Righthaven apparently had trouble tracking these defendants down to serve them because -- unlike a business with a street address -- some of these defendants were probably guys running websites from their apartments or while drinking coffee at Starbucks.
The lawsuit against Puget Sound Radio, for instance, called it "an entity of unknown origin and nature."
***
A writer for the Technology Review published by MIT is commenting on last week's decision by a federal judge to dismiss the Righthaven lawsuit against the Oregon nonprofit the Center for Intercultural Organizing on fair use grounds.
Christopher Mims asks about Righthaven in the piece: "In its over-reaching, has the law firm set a precedent that could damage the ability of content creators and news gatherers to control how their works are used, and to achieve fair compensation for their distribution?"
***
Righthaven hasn't yet publicly responded to the motion for dismissal filed by Denver Post TSA pat-down photo defendant Brian D. Hill.
In response to reader comments, here's why the Las Vegas Sun has not posted a link to the court exhibit showing Hill's alleged infringement of Righthaven's copyright.
The problem with the post by Hill -- which was archived by Righthaven and filed with the court -- is that it has the same headline as the deadseriousnews.com post of the photo.
This headline and the accompanying parody story are objectionable as they suggest a passenger was arrested for becoming sexually aroused during a TSA pat-down. The actual language in the headline, however, is too graphic for us to post.
With the mysterious deadseriousnews.com site apparently the origin of many of the Righthaven lawsuits, don't be surprised if Righthaven tracks down and sues whoever is behind deadseriousnews.com -- a website identified on Jan. 28 or perhaps earlier as appearing to be the source of many of the alleged infringements.
***
The TSA photo also appears on several news sites that attribute it not to Righthaven or the Denver Post, but to The Associated Press or "Associated Press/Denver Post."
That's because The Associated Press distributed the photo to news outlets.
We found the photo Wednesday on news sites including foxcharlotte.com, inforum.com, annarbor.com, deseretnews.com, heraldnet.com, washingtontimes.com and msnbc.msn.com, among others.
Once serious discovery gets under way in the Denver Post TSA pat-down photo lawsuits, defense attorneys and their investigators will likely take a hard look at whether the distribution of the photo by the AP contributed to it going viral online and how deadseriousnews.com emerged as the apparent source of many infringements.
It's probably no coincidence that the deadseriousnews post is dated Nov. 21, the same day the photo appeared with an AP story on several news sites. Some sites indicate the AP distributed the photo even earlier, on Nov. 18, the same day it was published in the Post.
As Hill points out in his motion for dismissal, William Dean Singleton, chairman of the board of directors of The Associated Press, is also chairman and CEO of Denver Post owner MediaNews Group.
No one is suggesting Singleton knows anything about the AP distributing the photo that apparently was provided to the AP by the Denver Post.
But it's only a matter of time before an attorney tries to see if dots connect between the Denver Post, the AP, deadseriousnews.com and many of the Righthaven lawsuits over the pat-down photo.
This could bolster the "implied license" theory -- that is the Denver Post didn't just encourage readers to share the photo.
It shared the image with the world by providing the photo to the AP and soon thereafter the image became an iconic symbol of resentment against new intrusive TSA pat-down procedures.
In the meantime, Toronto Star Newspapers Ltd., Metroland Media Group Ltd. and Torstar Corp. have yet to respond to a Righthaven lawsuit over the photo. That suit says the photo was posted without authorization on the thespec.com website for the The Hamilton Spectator newspaper in Hamilton, Ontario. In that case, again, the photo was credited to the AP.
I would like to know if dogster.com displayed or linked to a full-size version of the image. Also, if Dogster had the same policy in place as they seem to have now, giving attribution to the source of photos, then it would be interesting to know who they did credit if not the Denver Post.
The current page for the blog entry (or what I think is the correct page) on Dogster shows an image with credit from the TSA Blog, a pat-down photo credited to Getty Images and also a photo of a dog credited to a Flickr entry.
If this case is is defended it will go directly into fair use territory because of how the alleged infringing image was used to illustrate a related but different argument.
This will be an interesting one to follow if not settled.
"This could bolster the "implied license" theory" ....Green blosters this theory soooooo much that it has become a explicit licnese for anyboy to sue Sun content at will anytime that they want.
"This could bolster the "implied license" theory" ....Green blosters this theory soooooo much that it has become a explicit license for anybody to use Sun content at will anytime that they want.
With regard to AP subscribers, I would think that there is an implied license, if not explicit license to use material distributed by the AP.
I would speculate that the Denver Post had to initiate that distribution process. Granted, it could have been by accident, but I doubt that the AP automatically picks up content from subscribers.
What is amusing about the Ontario Star case, if they are an AP subscriber, is that you have the head of MediaNews Group suing himself as head of AP.
Oh no. This is one that I had warned them about before they were sued and they had removed the image when I told them about this. This could be used in their defense though because they can use my warning as proof they would have acted had they been sent a take-down notice. I have already emailed them to let them know my warning could be used as defense.
The more we learn about deadseriosnews.com and this AP distribution the more this looks like an intentional trap to intentionally make the photo go viral and then proceed to sue when it did. I smell a big stinking putrid rat.
Well, having seen the exhibit page now I think this case would be a good one to set guidelines, one way or another.
One immediate observation can be made, the image is not full-sized. The original on the Denver Post is 793px wide. I know that the image directly below the pat-down image on Dogster is 500px wide, so I can assume the pat-down photo is also about that width. Whether that would count as a thumbnail or not is open to debate. (It wouldn't going by the Sun's guidelines.)
Also of note is that the body scan image does not carry an attribution (maybe because it is a government photo and not subject to copyright?) but the bottom image does have one, the same one that is present as of today, to a Flickr page.
I think this suggests that Dogster does in fact try to make appropriate attribution and might have been unaware of where the pat down photo originated.
One thing that can not be known from the exhibit is what links, if any, are present. I wonder if Righthaven takes steps to preserve all the HTML, Javascript and CSS files that load for a page in raw format? One thing for sure, whatever they use to produce that exhibit really mangles the layout.
One more item of note about the exhibit: it does not display the comment section that is below the story. I wonder if that is a technical defect since if it is not a true and complete representation? It does, after all, display the contents at the bottom of the page below the comment section. There are currently 39 comments on the page, and on the date of the exhibit most of them were already present.
Chunky says:
Everything related to Righthaven has a unique fragrance.
That's what Chunky thinks stinks!
By the way, THANKS STEVE for posting the exhibit!
For the Dogster site Righthaven filed this on the 23rd. I can testify that in fact this photo was not on their site on the 23rd of March. I sent my warning on the 19th and it was taken off the site on the 20th. I have the emails to prove it.
If you go to this site:
http://photos.denverpost.com/mediacenter...
Denver Post is telling everyone to "Share this gallery" and at the bottom it has an RSS feed where websites can display the entire images not just links or thumbnails. Denver Post was encouraging people to share these photos. Denver Post distributed this photo widely with the AP. Denver Post encouraged the photo to go viral. Denver Post and Righthaven have some serious explaining to do.
Ken,
The date of the filing is, as you say, the 23rd. The exhibit shows that there were 38 comments present at that time. Your comment is number 39 and was made on the 19th. The 38th comment was made on 3/1/2011.
This means that there is a fairly wide window in time when Righthaven could have archived its version of the page. Because Dogster doesn't display the current date on its page we don't know exactly when Righthaven took the snapshot.
That said, having been deposed on related issues in the past, I can imagine that a determined attorney can tear this to pieces on some issues.
How can Righthaven prove that they did not create the exhibit that they say represents the supposed infraction? I'm not saying that they would fabricate evidence. I'm saying that there are many, many log files and other records involved to truly prove what existed when and who accessed what.
That exhibit is almost worthless on its own inasmuch as it purports to be a true and complete representation.
Ken, I think you are reaching on that one. Of more interest is that the non-linked text on that page at the bottom, i.e. the copyright notice is almost the exact same color as the background and is somewhat difficult to spot even when looking for such a notice.
I looked at the RSS feeds and they contain minimal information, mainly consisting of links to the original material. When I looked at the RSS feed for the galleries there was no link at all in one case, just a title. (Which defeats the whole point of have an RSS feed.)
Beyond that, I think a strong argument can be made that RSS feeds are meant for individual use and any other use would require permission from the owner. But as always, the Internet has called many assumptions into question.
botx
When I wrote the last post I had not run the feed through a feedreader. Their are src tags in the feed code but it looks like they do not render they just have a link to Denver Post's photo gallery. However Judges have been taking the implied licence argument very seriously and it is a very real possibility Judges may rule that papers have been offering their articles and images in such a way that any reasonable person could conclude that it is ok to post an image or article on a website.
I would probably be a bad choice to be on a jury deciding implied license. Being involved in the Internet as I am, I tend to take a technical view on this one based on the intended use of RSS and "share" links, especially those that give minimal excerpts and links to original information.
My objections are based more on Righthaven's tactics and the perceived intended use of the material.
But then again, I'm very much old-school Internet.
Personally I think an actual jury trial would be Righthaven's worse nightmare. I don't think thy would at all be sympathetic to them.
The suggestion that deadserious has not been sued because the image in question could be considered a thumbnail flies in the face of the lawsuit against DailyKix.com who posted a very small thumbnail.
http://c0658142.cdn.cloudfiles.rackspace...
This is several times smaller than the deadseriousnews photo and would be considered a thumbnail in anyones definition. Except for Righthaven of course.
I guess we just wait and see if RH goes after deadserious then (before RH gets smacked down.)
Also it begs the question why DailyKix is being sued for using a thumbnail when there is already court precedence stating a thumbnail is fair use. The only explanation I can think of is they are suing knowing full well they have no case but are counting on ill-informed defendants to make a quick settlement. Unfortunately for Righthaven DailyKix is now aware of the court precedents and that Righthaven has no case.