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October 22, 2014

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Righthaven defendants respond; more copyright lawsuits filed

Four more website operators have filed court papers denying copyright infringement allegations leveled against them by Righthaven LLC over material allegedly reposted online from the Las Vegas Review-Journal and the Denver Post.

Las Vegas-based Righthaven is the copyright enforcement partner of the Review-Journal and the Post.

Most of its Denver Post lawsuits are over a photo showing a TSA agent patting down the inner thighs of a passenger at Denver International Airport. After the Nov. 18 photo was distributed to media outlets by The Associated Press, it went viral on the Internet and has become a symbol of controversies over aggressive TSA searches of passengers.

One of the website operators sued over the photo, William Szirbik in Spring Hill, Tenn., said in a recent motion for dismissal that the Colorado court lacks jurisdiction over him because he doesn’t do business in Colorado.

Szirbik, who says he runs a website called ScaredMonkeys.com as a hobby, also asserted he didn’t copy the photo from the Denver Post website but instead found it on the site rawstory.com. Szirbik maintains the rawstory.com post of the photo didn’t credit it to the Denver Post or include a copyright notice.

The rawstory.com website, which as early as September reported on Righthaven, was also sued by Righthaven last month over the TSA photo.

Szirbik also said the suit against him should be dismissed because Righthaven had failed to show that in obtaining its copyright registration to the photo on Dec. 8, it had obtained rights to sue for infringements prior to that date.

“Plaintiff must allege that it is the owner of a valid copyright as well as any accrued actions of infringement,” Szirbik wrote in his filing. “Plaintiff fails to do this. Plaintiff does not even mention the transfer of the copyright from the Denver Post to plaintiff.”

While Righthaven’s right to sue over Las Vegas Review-Journal stories has been upheld by federal judges in Nevada, its copyright transfer arrangement with the owner of the Review-Journal is under attack by the digital freedom group the Electronic Frontier Foundation and others.

Also fighting the Righthaven lawsuit against him over the Denver Post photo is Andy Hwang in Hartsdale, N.Y., who said in court papers that he too has no ties to Colorado and isn’t subject to the jurisdiction of the federal court in Denver.

Hwang, who says he has a website called thefatbrat.com, said he has no money to hire an attorney and that he’s a college student.

“This lawsuit has affected my educational experience at my university, of which I am currently attending, and has been an unbearable burden,” he wrote in court papers.

Hwang said he found the photo at the website current.com, “which used the photo to accompany a humorous news story on TSA patdowns.”

“I credited and linked to current.com, whom I reasonably assumed to be the owner of the image,” Hwang wrote. “There was and is no clear and reasonable indication that the airport or persons depicted in the photograph is from Colorado — I assumed it was a public airport in San Francisco, of which the current.com article had described in its story. Looking at the image, no reasonable person would be able to recognize that it originated in a Denver newspaper.”

Hwang said no one from Righthaven asked him to remove the photo before suing him and that the first he heard about the lawsuit was when he was contacted for comment by the Las Vegas Sun.

“The photo was immediately taken down after email notice from the reporter,” he wrote. “According to my blog’s analytics, only 12 people saw that particular posting/image on my blog.”

He also argued that under the Fair Use doctrine in copyright law, the “photo was displayed for purposes of spoofing and comedic satire, as well as commentary on the satirical story current.com had used the photo for, of which I was under the impression was taken during the story coverage.”

“The Denver Post currently offers the option to share/save the same photo on its website, encouraging readers to print and save, and therefore is encouraging readers to share the photo and news with others,” he added.

A court exhibit indicates the post on Hwang’s website, though credited to current.com, has the same headline as a post of the photo on the deadseriousnews.com website. Several Righthaven defendants say they found the photo on the deadseriousnews.com site, which like current.com has not been sued by Righthaven.

The Denver Post TSA photo was still displayed as of Saturday on both the current.com and deadseriousnew.com sites. It’s unknown if Righthaven or the Denver Post have asked the sites to remove them.

It’s also unknown whether the deadseriousnews.com and current.com uses of the photo are allowed under the parody provision of the fair use doctrine of copyright law and, if so, whether the parody defense would also apply in some of the Righthaven lawsuits.

Also recently responding to a Righthaven lawsuit against them over a Review-Journal story were the United States Marijuana Party and Richard J. Rawlings in Peoria, Ill. That story covered a Las Vegas police detective shooting and killing Trevon Cole, who police said had been involved in drug sales.

The defendants said in their reply that the post at issue was protected by the fair use doctrine, copyright misuse by Righthaven and the First Amendment, among other things. Those defendants are represented by Las Vegas attorney Chad Bowers.

Also responding to a Righthaven lawsuit was Thomas J. Leyden, whom Righthaven says did business in Utah as “Strhate Talk Consulting” and owns the website domain name formerskinhead.blogspot.com. He’s accused of copying and displaying a Review-Journal column about the FBI allegedly pressuring a woman for information about the 1998 murders of two anti-racist skinheads in Las Vegas.

Leyden, too, said Righthaven’s claims were barred by the doctrine of fair use.

•••

Separately, Righthaven sued two more website operators over the Denver Post photo last week in federal court in Denver.

The latest defendants are Pamela Spaulding in Durham, N.C., whom Righthaven says runs the website pamshouseblend.com; and Q Communications Inc. and Don Tuthill, whom Righthaven says are associated with Passport Magazine and the travel website passportmagazine.com.

Court exhibits show the Denver Post photo on the Passport website was credited to the Post; while the Post was not credited on the Pam’s House Blend site.

An exhibit indicates Spaulding re-posted the photo and an accompanying commentary from the website ranker.com, whose owner Ranker LLC is also being sued by Righthaven over the photo.

“I haven’t received this lawsuit, This is the first I’ve heard of it,’’ Spaulding said Saturday after the Las Vegas Sun contracted her about the lawsuit.

“It’s absurd. The photo is all over the web, and I cited the story with the photo as it appeared on the website Ranker as part of its parody list of TSA ‘violations.’ And my post doesn’t target Denver readers in the least,” she said. “Also, where is the takedown notice before filing a lawsuit? I was never notified about the infringement with a takedown email or snail mail to rectify the situation from their perspective.”

Righthaven, however, says takedown notices are not required for situations where material is posted by website owners and webmasters. Takedown notices are also not required for third-party message-board posts on websites that fail to register certain information with the U.S. Copyright Office.

And while many Righthaven defendants complain about being sued without warning, Righthaven charges in its lawsuits that those same defendants didn’t bother to contact the Review-Journal or the Denver Post for permission to re-post material from those newspapers.

As usual, Righthaven demands damages of $150,000 apiece from each of the new defendants as well as forfeiture to Righthaven of their website domain names.

A message for comment was left with Tuthill.

The two new cases lifted Righthaven’s lawsuit total to 241 since March 2010.

Separately, Righthaven lawsuits settled or otherwise closed under undisclosed terms recently involve defendants the Lone Star Foundation, Stern and Company, Bonnier Corp., Michael Rucker and Leighton Law P.A.

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  1. A reader points out a typo we are correcting, the lawsuit total is actually 241

    Sarge is correct that in some Nevada cases the Nevada judges have ruled they have jurisdiction. In other Nevada cases, that issue has yet to be decided, particularly where they involve third-party message-board posts.

    The Colorado court has not yet addressed the issue. The lone defendant in South Carolina has agreed the court there has jurisdicton.

    As for protecting copyrights, we've reported the Sun and other Greenspun Media Group publications do this by asking infringers to comply with the Greenspun Media policy allowing links and text totaling as much as 100 words or 10 percent of the story, whichever is less.

    http://www.lasvegassun.com/about/useragr...

    I can't speak for our attorneys, but I know they have dealt with noncompliance appropriately.

  2. There is no money in going after people with no money. If they were suing doctors, lawyers, oil companies, builders, etc. they might have money. The wealthier people and companies are not going to get trapped by these lawsuits. They will cost Reichklaven more money in litigation costs.

    so to kinds of defendants:

    1) A handful of more affluent entities that have more legal clout to whittle down the size of a settlement.

    2) Mom and Pop websites with no money.

    No big turnips to get blood out of.

  3. I will no longer use the "sgt" moniker and just call you Rock because that is an insult to our brave men and women in Uniform.

    So Rock. The fact that Righthaven is now planting commenters in forums, YOU, just shows how desperate your company is becoming. No one is being convinced by your arguments so if anything your company is just wasting even more time and money hiring you to fill comment boards with your tripe. Infact your arguments are so baseless and full of obvious talking points that I would say you are actually turning more people to our point of view than your own.

    Another thing, for a company to hire a commenter and not disclose this information is highly unethical but then again we know that Righthaven and ethics are complete strangers.

    I feel inclined to not even engage you anymore and I would encourage other commenters to do the same and just ignore you.

  4. So then Rock tell us who you really are. I have the courage to use my real name so please who are you and what do you do for a living? If you show you are just an interested commenter then I will engage your arguments but if you are just a schill for Righthaven then there is no reason to bother with you.

  5. Righthaven is meeting far more resistance to these lawsuits which is going to cost them even more. Righthaven's new case filings fell by 70% from February showing that they are having to use their resources defending their position rather than obtaining and filing new lawsuits. It may also be that their client newspapers are getting skittish and rethinking their relationship with Righthaven. The tide has definitely turned against Righthaven and the numbers prove it.

  6. The numbers do not lie before Righthaven "obtained" the copyright to the TSA photo the numbers of cases had already declined sharply mainly do to the unfavorable ruling that posting snippets is fair use. The filings jumped to a recored high of 34 in January with that image but then plummeted to 10 in February to its lowest level. That is a 70% drop and even lower than it was after the fair use ruling.

    Righthaven is on the ropes. They cannot sustain themselves with these numbers.

  7. Rock

    "It may also be.....that Ken will stop speculating on stuff the he has absolutely no clue on."

    Oh so do you have some kind of inside information the rest of us do not? If you are not from Righthaven then how could this be?

  8. RIAA and their campaign of terror already proved that litigation tactics neither stop infringments nor make money for the litigator. RIAA stopped their lawsuit campaign because it was far more costly to file the suits and defend their position than they ever received in payments. They only got one large judgement and last I heard they were never able to collect on the person they won the large judgement over.

    This is another problem Rightaven as that they sue so many people of low means that even if they get judgements or settlements the chance for them to actually collect on them is very low. The most likely outcome for these types of defendants is to file bankruptcy in which case Righthaven gets nothing for their troubles except for a worthless judgement or settlement agreement.

  9. Rock

    You have never denied working for or in behalf of Righthaven. Can we take your non-denial as acknowledgment that you are affiliated with Righthaven? If so a full disclosure is in order and for ethics sake you need to put a disclaimer on everyone of your posts stating you represent Rigthaven.

  10. The reason why I am so interested in this story is because Righthaven and their ilk are an absolute threat to the Internet itself. The internet is the greatest manifestation of fair use the world has ever seen. Without fair use the internet would be imposible.

    When you put an image out on the internet in order send the image from one place to another it is copied in several network's servers, proxy servers, routers, switches, hubs, and even on every person's hard-drive that simply views the image. All of this copying is an implied consent given by the copyright holder when they place an image on the internet.

    In thier infinite stupidity Congress passed the DMCA having not a clue about technology or how the Internet works. They unwittingly signed the Internet's death warrant when they passed that bill. The only saving grace is that the DMCA is not enforced on any massive scale. If it was then the death sentence would be carried out. Righthaven takes advantage of this inherent conflict between the DMCA and the Internet as a means to make money but if ever their tactics become the rule instead of an exception the Internet will cease to exist in any meaningful or popular form.

  11. Rock

    I think you are having a nervous breakdown. There is help. I am glad you are on Rigthaven's side.

  12. Rock

    Oh and your employer Righthaven is ethical? Threatening to illegally garnish a disability check and threatening to take a domain name when there is no basis in law to allow such a seizure?

    I think everyone except you and Righthaven thugs have a good idea who lacks ethics.

  13. Rock

    Not to mention you pulling my words out of context again or you not disclosing your affiliation with Righthaven.

  14. tmwright01

    They chose this photo specifically because it had gone viral. This is gotcha litigation at its worst. Worst yet it was an image that had become a symbol for a political movement in protest of the governments handling of TSA pat-downs. It was in this context that most people used this photo as a way to illustrate these excesses. After knowing it went viral Righthaven with the Denver Post hiding under their skirt started a lawsuit campaign. What makes this so agregious it has specifically targeted those that used it to criticize the government which makes this run headlong into freedom of speech. It is also what is going to complicate this for Righthaven and will ultimately be their unraveling because of all copyrights that Righthaven has filed this will prove to be the most difficult and costly for them since there is a freedom of speech component and an extremely strong fair use argument for using this photo in a political context since it directly relates to the speech of the individuals who posted it.

    The tragedy of this whole thing is that that photo was an important historical image of national importance and it has now becoming nothing more than a litigation tool for Righthaven. Whatever value that photo had before has been rendered worthless accept to line the pockets of Righthaven. The image is now toxic and has now completely lost its original meaning. That photo will never be used again in the context of its original purpose and that is a tragedy.

  15. If the newspapers want to sue people for copyright infringment they should have the courage to put their own name of the lawsuit and hire a reputable law firm to represent them. Not one that has a very ethically and legally questionable business model. Newspapers are insane for doing business with Righthaven because every case is compromised by Righthaven's business model. Newspapers are exposing themselves to extreme risk of counter suits and other liabilities by dealing with Righthaven. Would anyone in their right mind ever hire a lawfirm that the firm itself becomes an issue and adds needless complications into the cases? Never.

  16. Chunky says:

    Few people oppose the protection of someone's intellectual property rights.

    It's always been about the method and model Righthaven uses to squeeze money out of the defendants.

    It's slimey and anyone who supports Righthaven or works for them has the same slime on their hands as well.

    At least the SC attorney has the guts to fight back aggressively and hopefully effectively.

    That's what Chunky thinks!

  17. It may be time we re-evaluate the free access we give these newspapers to restricted areas like the Whitehouse etc. It has always been understood that it is in the public interest to allow the press access to the Whitehouse and government officials for the purpose of informing the public. Apparently though the newspapers now believe the access we as a public give to them is for their own private business interests. That is fair but lets start charging media outlets the billions of dollars of value this access brings them since they are only doing it for their own self interested purposes.

  18. anchorbine or should I say sgtRock

    Changing your screen name does not make your argument anymore valid. At least your not besmirching our men and women in uniform anymore by claiming to be a sergeant.

    That aside there will be more stories as the national media takes notice. Stories like this tend to start percolating in the blogesphere before the major media takes notice. The last few weeks there have been more stories written about Righthaven than there has been since its inception. If the EFFs alagations are correct and these are sham copyright assignments then this will suddenly turn into front page news in every media outlet in the world.

  19. Plus, Stephens Media and News Media Group are some of the most power news empires in the country. They will keep this story suppressed for as long as they can but eventually even they will not be able to stop it.

  20. Rock

    So you are back to being Rock again huh? well anyway I meant to say that Stephens Media and Media News Group are some of the most powerful news empires in the country.

  21. "some of the most powerful" I didn't say "Most Powerful" and Media News Group is one of the largest Media empires and they will even say so. you have a habit of misquoting me and taking my words out of context. Of course I wouldn't expect anything less from a Righthaven employee.