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July 28, 2014

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Copyright lawsuits pile up over Vdara ‘death ray’ illustration

A simple Google Images search shows how Las Vegas copyright enforcement company Righthaven LLC is likely going to cash in on what's gaining notoriety as the Vdara "death ray" illustration.

Righthaven, the Las Vegas Review-Journal's copyright enforcement partner, has now sued at least 10 website operators for copyright infringement over the Review-Journal's Vdara graphic, charging they posted the illustration on their sites without authorization.

The Review-Journal's Sept. 25 Vdara illustration -- the graphic at issue in the copyright infringement lawsuits -- shows how the sun’s rays are focused by the hotel building on the swimming pool area.

Among the latest to be sued by Righthaven this week over allegedly unauthorized posts of the illustration were:

-- Washington, D.C., architectural designer Ed Estes and Estes Design Group, associated with the website edestesdesign.wordpress.com.

-- John Lundberg and Mark Pilkington, allegedly associated with the British website strangeattractor.co.uk.

-- Azkar Choudhry and Pak.org; allegedly associated with the website paklinks.com.

While Righthaven demands $150,000 and forfeiture of website domain names in each of its suits, it typically settles for less than five figures. Some defendants are fighting back, however, saying they didn't intend to infringe on copyrights and would have removed the material if asked to do so.

Messages for comment were left with all the defendants in the new cases, which bring to at least 187 the number of Righthaven lawsuits filed since March.

Righthaven says in Monday's lawsuit against Choudhry and Pak.org that it now owns the copyright to the death ray illustration and that the graphic was posted without authorization Oct. 8 on paklinks.com.

Asked about the suit, Choudhry told the Las Vegas Sun: "This post on our site was not published here. It was a mere RSS (Really Simple Syndication) feed from a very reputable site, wired.com, which most likely got its feed from its numerous channels."

"We respect copyrights but in this digital age, publishers like our self are at a disadvantage when policing the content. Imagine, someone posting the same feed on facebook.com. What is this firm going to do? Sue everyone on the planet? Maybe they should make their copyright materials unavailable for bots (robots) and RSS feeders," Choudhry said.

It's unclear whether the Review-Journal's Vdara graphic was part of an RSS feed. The Review-Journal illustration at issue did not turn up Tuesday in a search of the wired.com site or in a search of Google's cached material from wired.com.

A nonprofit Montreal-based website sued last week over the Vdara illustration by Righthaven, urbanneighbourhood.com, also complained about the lawsuit.

"At no point has Urban Neighbourhood ever been contacted by the Las Vegas Review-Journal regarding the use of the image," the site said in a statement reacting to the lawsuit. "We find it both strange and rather counter productive for their paper as the blog post clearly linked back to, and referenced, the Review-Journal with clear credit given to them as the source, while at the same time the post encouraged our readers to visit the paper and read the full account. By doing this Urban Neighbourhood was encouraging traffic back to the paper's website -- a traffic redirect that we can assure you we will no longer be participating in.

"What we find most amazing about this is the lack of effort on the part of Righthaven to resolve this without engaging the legal system. ... At no point did Righthaven try to contact us. Instead of sending a simple e-mail to request that the photo be removed, they have decided to monetize for their own gain the resources of the American judicial system without knowing who they are in fact suing, or where that organization is located; which incidentally is not within the jurisdiction of the state of Nevada. It appears to us that Righthaven is abusing the American legal system by trying to use it to create revenue," the statement said.

"It appears that this suit is part of the paper's new policy of copyright trolling and is in our opinion ultimately counter productive to its own aims. Newspapers, much like websites, rely on circulation ultimately for their revenue. By going after nonprofit publications that are directing traffic to the paper through links and references, they are slowly but surely cutting those links off," the statement said.

"The reality for us here at Urban Neighbourhood is that we do not fall into the jurisdiction of the Copyright Act as we are not based in an American jurisdiction," the statement said. "If Righthaven would like to try to convince the judicial systems of other countries that its cases have merit and are not simply abuses of the legal system, then we will see what happens. But we are confident that the courts in our jurisdiction would not find for Righthaven, or even hear the case as the company did not fulfill their obligations under the Copyright Act through their failure to send a takedown notice."

Righthaven, however, is litigating against several Canadian website operators and insists it has jurisdiction because, according to Righthaven, the websites direct their activities toward Nevada residents.

"The defendants’ display of the infringement was and is purposefully directed at Nevada residents," Righthaven charged in its lawsuit against Urban Neighbourhood and an official there, Daniel Barham.

Despite the protests of the latest defendants, Righthaven is likely to continue litigating against them.

And despite national publicity about its copyright infringement lawsuits over Review-Journal and Denver Post material, Righthaven will likely have no trouble finding additional Vdara death ray illustration infringements to sue over.

A Google search Tuesday found the image on scores of websites. Chances are, many didn't seek permission to post the illustration and, chances are, many didn't comply with the "safe harbor" provisions of the Digital Millennium Copyright Act

In order to avoid lawsuits over third-party message-board postings, website owners must designate an agent to receive infringement notifications and provide information about the agent to the U.S. Copyright Office.

Sites not seeking permission to post the death ray graphic and failing to register a DMCA agent are the sites that may be hearing from Righthaven.

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  1. As extreme as it may look or sound, the lawsuits are intended to protect the property of the rightful owner. I know many will not agree, but if the story is your story, then anyone using your story should follow the rules required to use your story. So far every court has agreed with Righthaven.

    On the larger picture this protected the small bloggers and news websites. Your property must be protected and the rules must be followed. The internet is far reaching with the majority of the users unidentified. It's good the courts are honoring basic copyright law.

  2. Longtimevegan,

    Sorry to burst your bubble but fact is "every court has agreed with Righthaven" is far from being correct.

    A couple cases, as reported by the Sun and others have been dismissed by the court.

    Righthaven is also backtracking and trying to withdrawn some cases because they could be held liable for legal fee's to the other side because of their current actions.

    Yes, The RJ has the right to protect their content, it is their work product. They also have the right to sue in most cases but over the long term it is not going to be profitable for Righthaven to continue like they are. They are collecting small amounts and running up costs.

    They may also be found liable in some of the cases being dismissed for the costs. That will eat into their profits quickly.

    People should be playing by the rules when running a web site or it will cost them.

    Righthaven's way of dealing with it just might not be the way to do this though.

  3. Vegaslee

    Thanks for the correction. I do think Righthaven's actions will make others think twice about how they distribute their news. There are other ways that could be used, but when your dealing with no-names/no-faces on the fast moving internet, the courts are the best way to send the message of following the rules. Win or lose on court.

  4. Simply put: There have been no trials. Not a single case has yet to be litigated and for all we know, once one is, the penalties could be as high as that for which Righthaven's asking, or a buck.

    As for the settlements that have been public, it's kind of hard to see how Righthaven's staying in business, let alone showing a profit.

    I think this will get very interesting once one of these cases actually goes to court and ultimately through the appeal process. I also wonder if the State Bar is going to take any action against Righthaven. Finally, what's all of this now costing the RJ -- It's being countersued by at least two entities, as is Righthaven.

    It seems to me that none of this was well thought out -- or, if it was and meant to either be a profit stream for the RJ or cut back on copyright infringement, my guess is the newspaper is disappointed in the former and has probably succeeded to some extent in the latter.

    As I've said before, just about all, if not all the stories I've read about other papers attacking these issues have said they've been very successful with takedown letters or the like.

  5. The entrance into the illustration and photograph arena surely wasn't by fluke. As Green wrote, the death ray illustration may involve many more lawsuits. Fair use is said to be harder to prove when dealing with "creative" works.