Tuesday, Feb. 8, 2011 | 2 p.m.
Website operators and commentators are expressing surprise and skepticism about the latest batch of copyright infringement lawsuits filed by Righthaven LLC of Las Vegas, all over the same Denver Post "enhanced TSA pat-down" photo.
At least eight more suits over the photo were filed in U.S. District Court for Colorado last week and Monday, lifting to at least 34 the number of suits Righthaven has filed over that photo since Dec. 8. Righthaven in its lawsuits typically demands $150,000 in damages and forfeiture of defendant website domain names.
Defendants sued over the photo include high-profile website operator Matt Drudge of the Drudge Report and white supremacist David Duke. Neither has answered the copyright infringement allegations against them.
In all, Righthaven has now filed at least 238 lawsuits since March over material from the Las Vegas Review-Journal and the Denver Post.
A problem with the TSA photo lawsuits, one law professor says, is that many of the website operators and message-board posters who posted the photo probably had no idea where it came from.
"What’s new – and troubling – with these latest lawsuits is that the people being sued may have had no idea that the photo they were using originated with the Denver Post. Since the photo went viral, it’s showed up in Google image search results disconnected from the Denver Post," Eric E. Johnson of the University of North Dakota School of Law wrote on his blog.
At Techdirt.com, commentator Mike Masnick wrote that one of the Righthaven TSA photo defendants, Pajamas Media, may have a strong fair use defense.
"This isn't a case of someone just grabbing a photo to illustrate a story. Instead, the opening paragraphs -- which clearly identify and link to the Denver Post as the source of the image -- are about how this image has 'become the symbol' of the 'Don't touch my junk' movement. It would seem that this gives Pajamas a really strong fair use claim, since the image was being used within a news report for commentary on the iconic nature of the image," Masnick said in his blog post.
The latest website operators and associated parties to be sued by Righthaven over the photo are:
--Hans von der Gruen, Jesse Mathewson and Western Front America, (westernfrontamerica.com)
--Matzoball Entertainment Online LLC and Michael Airington, (estergoldberg.com)
--Freedom Force Communications, The Say Anything Blog, Scott Hennen and Rob Port (sayanythingblog.com)
--UK-2 Ltd. and Airline Workers Unite (airlineworkersunite.com)
--Radio One Inc., Interactive One LLC and Sean Anthony, (ipowerrichmond.com)
--Baltic Enterprises LLC and StrangeCosmos.com(strangetravel.com)
--Raw Story Media Inc., John Byrne and Eric W. Dolan (rawstory.com)
--Ranker LLC and Ariel Kana (ranker.com)
Messages for comment were left with all the new defendants.
Here's what some of the recent defendants told the Las Vegas Sun after the Sun informed them they were being sued:
Airington at estergoldberg.com: "I am shocked at this lawsuit. The pic in question was part of a parody I had copied and pasted and credited back to the original publication (deadseriousnews.com). That had nothing to do with the Denver Post."
von der Gruen at westernfrontamerica.com: "Good grief. I had no idea. The photo is all over the web. All that the paper had to do was notify me and I would have removed it. I got it from a Google images search just as, no doubt, the hundreds of other sites using it did. This must be how the Post is making up for falling revenue due to declining readership. ... They should have put a copyright notice on the image if it was that big of a deal."
"I'm retired, live on about $12,000 a year (Social Security), own next to nothing and the site generates about $60 a month from the ads. So they can sue me all they want. If my site gets any publicity out of this, it can only be good for traffic," he said.
Justus Steel at thoushaltnotsteel.com: "I like to do Google searches for pictures that fit my blog and apparently I used one that they say was specifically theirs."
"In reality, this company called 'Righthaven' buys the rights to photos, and then sues everyone in the universe for using them. Unfortunately, in this day and age, these (with) too much time on their hands, too much money on their hands, corporate (expletive) can actually get away with this. Unbelievable.
"Want to know how many views the article I wrote received? 68. ... Guess how much money I made off that picture? None. I don't make any money doing this. I don't even have ads on my page," he said.
"Is it my picture? No. Should I have used it? No, apparently not. I'm pretty new to all this, been doing it for about four or five months now, but ignorance is no excuse. Nor do I want to be excused. I'm not arguing that I'm right in using the picture here. I'm saying if you let me know I'm doing something wrong, I would try to fix it. That's what's wrong with the world today. They couldn't just come to me and say 'Hey, you are probably new to all this stuff, but that's my picture, and I'd appreciate if you didn't use it.' No, they wouldn't do that, that would ruin the point of making money," he said.
Despite these complaints, Righthaven says its lawsuits are necessary to deter widespread online infringements of newspaper material and the Denver Post website includes a copyright notice explicitly warning "we will use all legal remedies available to address these infringements."
Righthaven watchers, in the meantime, are waiting for Nevada federal judges to issue what could be key rulings on fair-use defenses in older copyright infringement cases including those involving the Democratic Underground and the Center for Intercultural Organizing.
In four of the older cases, Righthaven faces counterclaims -- some charging its lawsuit campaign is an abuse of the copyright law and is aimed at coercing settlements since many of its lawsuits are settled for less than the cost to defend them.
"Righthaven uses the threat of statutory damages, domain name seizures and attorneys fees to extract low-value settlements from defendants," charges a counterclaim by the Pak.Org website.
Righthaven denies these allegations as does Stephens Media LLC, owner of the Review-Journal. An affiliate of Stephens Media is an investor in Righthaven.