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Wednesday, March 16, 2011 | 10:39 a.m.
Las Vegas newspaper copyright enforcer Righthaven LLC was hit with a seventh counterclaim Tuesday, this time over one of its lawsuits over the Denver Post TSA pat-down photo.
Attorneys Natalie Hanlon-Leh and Spencer Ross of the firm Faegre & Benson LLP in Denver filed the counterclaim in behalf of Freedom Force Communications, The Say Anything Blog, Scott Hennen and Rob Port. They were sued Feb. 4 after the photo appeared on the Minot, N.D.-based sayanythingblog.com website.
Righthaven, which sues over Las Vegas Review-Journal and Denver Post material, as usual in the lawsuit demanded $150,000 in damages and forfeiture of the sayanythingblog.com website domain name. Righthaven since March 2010 has filed at least 249 copyright infringement lawsuits against website operators, bloggers and message board posters.
A Righthaven court exhibit indicates the Denver Post was not credited as the source of the photo in the Nov. 20 post on The Say Anything Blog.
The Say Anything Blog answer and counterclaim to the copyright infringement lawsuit charged, without elaboration, that Righthaven lacks standing to assert the copyright infringement claim.
Righthaven's right to sue over copyrights it obtains has been upheld by Nevada judges, but so far the Colorado and South Carolina judges assigned to Righthaven's cases haven't yet ruled on that issue.
In Nevada, defendant the Democratic Underground says it has obtained new evidence undermining Righthaven's right to sue and backing up the Democratic Underground's claims that Righthaven's lawsuits over Review-Journal material are based on sham copyright transfers. Righthaven has denied these assertions.
In the Say Anything Blog case, the defendants' counterclaim is based on their assertion the use of the Denver Post photo was protected by the fair use doctrine of copyright law.
"Plaintiff’s copyright infringement claim is barred, in whole or in part, by the fair use defense," Tuesday's court filing in Denver said. "Plaintiff’s copyright infringement claim is barred by the First Amendment of the United States Constitution."
The counterclaim said Rob Port, editor of the blog, used the photo in "a political blog posting designed to stimulate debate and foster discussion as to whether or not the Transportation Security Administration should be privatized to more effectively combat terrorism."
This is the first counterclaim Righthaven has faced in the 45 suits it has filed over the Denver Post photo, which was distributed to media outlets by The Associated Press and went viral online as a symbol of new aggressive searches of passengers by the TSA.
Earlier, a counterclaim was filed in a Righthaven lawsuit over a Denver Post column and five more counterclaims were filed over lawsuits involving Review-Journal material. All seven counterclaims remain active and it's impossible to say when they'll be resolved or settled.
Righthaven has not yet responded to the latest counterclaim.
Counter suits are not part of the Righthaven business plan. In the long run they can not afford counter suits.
Fast shakedowns for settlements is the game plan with little costs involved.
Their business model won't work if they start having expenses.
GOOD!!!
A little huffing & puffing will blow the little piggies' house of horrors right over...
The END is near!
Chunky says:
Pile it on and bring the "House of Righthaven" down!
The way in which Righthaven goes about protecting and enforcing copyright is wrong in more ways than one.
That's what Chunky thinks!
GO GET 'EM !!! Show them that 2 can play the game !!!
As I posted on my blog, I have to wonder if Righthaven and the RJ really thought out this tactic before they started, i.e. even considered they might be targets of counterclaims. On the other hand, considering the borderline irrationality of some of the former publishers blog posts, perhaps they didn't. This has got to be costing them a pretty penny, if not now, at some point with an apparent low ROI. It's just odd that it continues.
I think Righthaven misunderstood the current state of the Internet culture and failed to realize that there is a difference in mindset between pirating a movie or song and disseminating ideas and information on blogs. Righthaven also seems to have failed to account for what would happen if a counterclaim were NOT to be dropped in exchange for the original suit being dropped. EFF is giving Righthaven a guided tour of the "hurt locker" now.
I don't deny that copyright laws serve a valuable purpose, but serving as a revenue center was never meant to be part of it.
"I'm going down in a blaze of glory..."
Jon Bon Jovi - Blaze Of Glory
1990
1) People with no money to pay lawsuit judgements.
2) People with money to fight lawsuits and counter sue.
Two problems for Reichklaven, along with the PR problem.
Righthaven most likely modeled their buisness plan after the RIAA that only had a few cases actually go to court and faced no serious counter suits. The amount of opposition and the number of counter cliams will easily erase the estimated $360,000 Righthaven has squeezed out in settlements. Righthaven failed to anticipate the opposition they would recieve.
As boftx suggested the distinction between downloading a song and posting a photo in most peoples minds is very wide. For one thing there is little fair use in downloading a song however, there are a wide range of fair use arguments in posting an image or an article. Newspapers offer their articles for free and even have share buttons while there are no legal music or movie sites that encourage sharing of their works.
Righthaven cannot sustain this unless their backers are willing to take a tremendous loss because as of now Righthaven is most likely already deep in the red with no end in site.
mred: "...along with the PR problem." I'm in that business and specialize in crisis work. While I have little doubt that the RJ can "rehabilitate" itself in the community's eye, it's doubtful to me that Righthaven, or its attorneys can. However, they are lawyers so chances are they'll find some work, somewhere. The latter assumes they have no issue with the State Bar (or Federal) regarding licensing, but I'm not especially familiar with what that might entail.
As I've said before, I think it all boils down to the results or rulings from the first litigations by Righthaven and the counterclaimants.
This is interesting: The Associated Press and Obey Clothing have settled their copyright suit and this statement was in the story: "The AP is particularly gratified that this settlement will benefit the AP's Emergency Relief Fund, which helps AP staff and families worldwide cope with catastrophes and natural disasters." (http://www.poynter.org/latest-news/romen...)
There's no point in stating the question(s) that this begs.
It is the implications from this statement by AP that are the most applicable here: "...[AP will] defend its copyrighted photographs against wholesale copying and commercialization where there is no legitimate basis for asserting fair use."
boftx: I understand that...it's the use of proceeds that I respect and admire.
http://www.washingtonpost.com/politics/e... - How real newspapers handle such issues: Washington Post apologizes for stories that 'borrowed' from Arizona Republic
Stevie.....I know you have this big newspaper background but the Washington Post story is about plagiarism and not copyright infringement.
Fortunately, most who post here read other posts before responding and criticizing. "...such issues..." relates (for those who have difficulty understanding) to potential litigation and related issues, at least in the vernacular.
I have a real problem when it comes to copyrights of photos that are taken in restricted areas like the Whitehouse. We as a people have given the press access to these areas in the public interest not just for the newspapers own economic benefit. The public has an interest in those photographs and they should not be restricted under copyright for use by the general public for criticism, commentary and/or news reporting. Newspapers have an obligation to make those photographs available without restriction when used for these purposes.
Infact if the photographer of the TSA photo was granted access to the security area of the Denver Airport, which is restricted if you are not flying, then the public too has an interest in this photograph and should not be restricted in using it, especially in regards to its use as a means of criticizing the TSA.
Righthaven is going truly old school. See
http://en.wikipedia.org/wiki/Champerty
Don't forget this one: http://en.wikipedia.org/wiki/Barratry
In fact, the word "barratry" is so rarely used my spell checker doesn't recognize it.
There are going to be a ton of folks here who disagree with me and this notwithstanding the fact that I comment (and not only on this matter).
I think that I'm beginning to believe "old school" for this sort of colloquy is best, i.e. write a letter to the editor; if it's good enough, it'll get published. If that doesn't work in these technology oriented days (and I still have my Royal 440 and Remington in my office), then I think if we have something to say, we ought to post under our real names.
It disturbed me that I couldn't do anything during my settlement negotiations. However, I don't understand why folks are hesitant to do that. As a second tier idea, as I posted earlier, I think we all ought to get together (with or without "Sarge") and have a drink -- however, only if we can get at least a half dozen of us, as the discussion will be longer and involve more drinks.
I seriously doubt "Sarge" has the fortitude to personally defend his position, but that's fine as he's become truly rote.
We have removed many of the safeguards that put restrictions on the courts and to safeguard us from abusive lawsuits. Champerty and Barratry laws were designed from keeping people from gaming the system like Righthaven has. We have become the most litigious society on Earth and it is destroying the freedoms we used to take for granted.
The tyrants have found a way to take our freedoms and they are using the courts to do it.
"We have become the most litigious society on Earth and it is destroying the freedoms we used to take for granted."
You must be talking about the the right to steal other people's work.
I believe that is either in the 4th or 5th admendment of the Constitution.
Ken: I understand what you're saying. It's become a constant consideration for me that there are so many things "wrong," or that require "updating" or "revision" these days, it's a true challenge for the so-called "powers that be" (though I find them nowhere near as diligent and focused as they once were) to prioritize. Personally, I put things like copyright far below other issues facing our nation and the courts these days. Whether you agree or not, it seems to me that about 20 million+ (counting long term)unemployed, poverty levels and the condition of our nation's infrastructure, to say nothing of wars, et al (not to diminish the "others") should come first.
What the hell, I'm an old left wing liberal from New York. Your comment was quite articulate, by the way. However, I wouldn't classify Righthaven as a "tyrant," just a bunch of jackleg persons with law degrees trying to make an easy buck. I think to be a "tyrant" is almost a kudo for them.
For those of you who are fond of dry reading here are the Nevada Rules of Professional Conduct: http://www.leg.state.nv.us/CourtRules/RP...
They're not as bad as some contracts I've seen, but ...
Steve Green filed this story back on Sept. 13 of last year: http://www.lasvegassun.com/news/2010/sep...
This has not been ruled on so far as I know. Any wagers that involved Rule 5.4 of the Rules of Conduct?
After Righthaven got their clocks cleaned and lost the right to sue over small excerpts, a fact they are now appealing, they had the ridiculous idea to sue commenters. These are by far the most dubious lawsuits and proves that Righthaven doesn't care about the merits of a case because these suits above all are nearly impossible to prove who actually left a comment. If ever one of these cases actually make it to a court room these will be laughed out of court. So, hopefully, anyone being sued over a comment will fight it and not settle because these are cases that Righthaven cannot win.
Rock
You said that Righthaven may not have sued DeadSeriousNews.com because they have Whoisgaurd that makes it a little more difficult to determine the owner of a site. however, Righthaven is suing commenters which is much harder to get information than the site owner from NameCheap.com (which would only require a subpoena) Than attempt to determine exactly who left a comment, and then the added task of proving that person actually did leave the comment which would be virtually impossible.
So I don't buy that argument about not suing DeadSeriousNews.com. It is obvious the reason they don't is because that site is being used as a honeypot to entrap those that may have never read or even heard of the Denver Post.
This smacks of similar tactics used by MediaDefender, which does show Righthaven does fit the category of Internet Vigilante.
http://en.wikipedia.org/wiki/Internet_vi...
I'm not so sure, Ken. It is precisely the 3rd-party poster that much of the safe haven clause of the DMCA was meant to address with specific requirements that have to be met in order to have that protection. Those cases could be the most interesting of all if they went to court in terms of establishing the "spirit of the law."
As an aside, I can think of at least one case where the Sun removed a comment because it reproduced a very large portion of an RJ story, an obituary, last year.
I don't know which is more ridiculous.
Your claim that Righthaven is shutting down the Internet or that Righthaven is like MediaDefender.
Are you saying that Righthaven is posting copyright material and then suing website owners?
One thing newspapers have conveniently forgotten is many of their stories or elements of them are not copyrightable. A description of fact cannot be copyrighted. Therefore, if you copy a story from a newspaper that is a description of the facts then you are well within your rights even if you copy the entire thing. A story can only be copyrighted if it also contains some kind of narrative, opinion or creative writing.
Rock
What I am saying is I believe they are allowing the image to stay on DeadSeriousNews.com and possibly other popular sites as a means of entrapping people. This serves the purpose of distancing the true origin of the TSA photo and reeling in people who would not normally read the Denver Post.
There are several Righthaven victims that got the image on that site. It makes you wonder if Righthaven has access to the analytics of that site to track those that uploaded the photo.
Here is your entrapment theory:
A guy owns a 7-11 store. He walks across the street and steals a box of candy and sells it his store.
A dude walks into his store and steals a candy bar from that box.
The dude is entraped?
That is silly.
The dude should have paid for the candy.
The same is true with that image.
The people that wanted to use the image should have asked DeadSeriousNews.com for permission or offered money to purchased it.
Nobody held a gun to their head.
Nobody forced them to download the image and then to post it on their own site as if they took the picture or paid somebody to take the picture.
It is fairly common to protect your whois information. Most people really don't want name, address, email etc. being readily available given how common identity theft is today.
That is also what has turned out to be a major drawback to registering for the DMCA safe harbor. In order to protect what little illusion of privacy exists you must have at the very least a P.O. Box and a throw-away cell.
I have asked permission plenty of times to use a photo and actually a good percentage of people have said ok, even without charge. Infact it is common for them to thank me for asking instead of just taking. There was one in particular though who said it would cost me $1500. I emailed back and told him that was ridiculous and told him he could either offer something fair and actually get money or he can offer what he did and get nothing and he can keep his stupid photo. With a product like a photo were there is virtually no distribution costs it makes more economic sense to sell a lot of them for little money rather than a few of them for a lot of money. Infact if more people charged a reasonable price there would be little incentive for people to just take them. People will pay when they feel the price is worth what they are getting.
Another problem too is you don't always know who owns a copyright and you could be getting permission from someone who is not the copyright holder.
I learned a long time ago that truly informed intellectual colloquy is not only supported by fact, but also without anger or rancor. Bill Buckley and Saul Alinsky had several public "conversations," perhaps at the "Y" on the upper West Side, but I don't recall (could have been at NYU Downtown or the New School). Never were they in anger and almost always did they leave the audience with something more to consider. Equally important they were never categorical or relied on "rote" issues. They posed views and perspectives that left one to think about social and cultural impact and, at times, legal issues that perhaps required modification. In short, they thought about what they were saying: They were intellectually creative.
It is intellectually, well, foolish, to not take into account these issues. While I abhor addressing "Sarge," who almost by definition is cowardly by not responding to us (or me by phone) with his true identity, I think it is incumbent upon him to take these issues into account. Otherwise, he's little more than a person who yearns for the "publicity" he receives here on this site.
To "Sarge," if you want publicity, give me a call, pay our retainer, and we're happy to work with you. Well, perhaps not "happy," but given certain perameters of retention, will do so. We'll make you a "star." That seems to be what your "contrarian" position wants. And, let's you and me, and those who want to, have a drink at Charlie's Down Under. Come on out of the closet Sarge.
MSNBC is censoring stories about Righthaven and Brian Hill
http://www.msnbc.msn.com/id/41609077/ns/...
Here is the Google cached verson that can still be accessed:
http://webcache.googleusercontent.com/se...
Why is MSNBC censoring stories about Righthaven?
This story might contain a hint why MSNBC took it down: http://www.techdirt.com/articles/2011031...
The original story on MSNBC was provided by AP. From the story I linked above we can read this: "After all, the Denver Post is the flagship paper of MediaNews, whose chairman is Dean Singleton. Singleton is also the publisher of the Denver Post. And.... he's been the chair of the Associated Press for over a decade."
This is *pure* speculation.
Or there can be a more rational reason, the MSNBC site stores AP stories for only so long. The Sun seems to stop making AP stories available after a given time period, too. I have saved links to interesting stories on the Sun's AP wire feed and have found them to be no longer available after a period of some months. I've never done any tests to see how long that time period is.
This might even be a standard clause in the AP contract.
botfx
Here is another one.
http://www.msnbc.msn.com/id/41723570/ns/...
I checked for msnbc stories that were the same date and from the associated press and no others I have found have been deleted.
http://www.google.com/#hl=en&sugexp=...
You do make a good argument for sites that archive newspapers. Copyrights are putting a lot of things at risk for preservation purposes. Infact there is a real problem with copyrights becoming orphaned and sent down a black hole.
http://www.copyright.gov/orphan/
I remember the "morgue" from my newspaper days, as well as having to go through files at the Library of Congress, as well as other government agencies. Sometimes I think that was a lot more fun...on the other hand, I am old. If you want a third hand, I read a Kindle. Ahh, a dichotomy I don't even want to consider.
This is how copyrights have gotten completely out of hand and how this country is turning into a police state ruled by corporate interests. People who simply link to sites that contain unauthorized copyrighted materials are being seized by Homeland Security and their owners arrested.
http://act.demandprogress.org/act/channe...
I could see Righthaven running with this and start suing people who simply have linked to a site that contains one of their copyrighted materials.
Oops better not give them any ideas.
"We'll make you a "star." "
I am already a star.
Sincerely Sgt. Rock
Ken: I usually agree with you, but "police state," well, not really. We're able to post here, within reasonable limits, and say pretty much that which we want and feel. I, being a bad boy, regret not being able to smoke at a bar, but I understand it.
At some point, we'll see an outcome for the RJ and Righthaven. I wouldn't bet on what it is. I think the telling will be in the "recovery" the Courts award.
I'm extraordinarily a 1st Amendment kind of guy. I've been defending by a major paper on sourcing and been voluntarily deposed in a couple of cases for reporters. However, I'm also equally in favor of civilized and intellectually honest colloquy, something about which most here seem similarly to favor. Ergo, the idea of a "get together." Apparently "Sarge" would prefer not to attend. I'm still waiting for RSVPs...I'd like at least a half dozen of us to get together...Let me know and we'll get a convenient date.
Sarge, it'd be interesting to have an opposing side of that discussion. Do you have the fortitude to attend? Or are you just going to respond to this with your normal, pro-RJ, rote response? My name's out there. Is there a reason yours isn't?
It looks like all associated Press stories on Brian Hill have been purged. Doing a Google search I no longer find any stories about Brian Hill. Associated Press is chaired by Dean Singleton who happens to be the editor of the Denver Post. Seems like there is something dirty afoot.
"It looks like all associated Press stories on Brian Hill have been purged. Doing a Google search I no longer find any stories about Brian Hill"
There are a tons of that AP story out there.
You can't just google Brian Hill to get to them.
There are perhaps 3 reasons for this.
1) Nobody cares about the story and therefore it gets a poor ranking in Google.
2) Google recently did a major change in its search engine and that cause the search to not return hits
3) Google is part of the Righthaven team and is part of the grand scheme to bring down the Internet
Go run with 3 Ken.
Search on this complete statement and you will find the AP links. "I think over the past 15 years, it has been made fairly clear that you're not going to get a reduction in the level of infringements and the respect of the infringement community just by asking them to take it down."
Sarge: Clearly you've not accepted my invitation to have a drink. And even more succinctly, you've declined to come out from behind your imprimatur, which leads me to believe you are little more than a cowardly soul, searching for recognition for what you believe to be intellectual colloquy, but is little more than the rants of one who is unwilling to publicly defend his beliefs and simply enjoys "baiting" those who do engage with a degree of integrity, many of whom have communicated with me personally and openly. That said, I think it's best to ignore you as why even bother to debate with a cypher. My recommendation is that the rest of those on this venue do the same.
Rock
You give me any 10 websites with photos on them and I would, with great confidence, say that at least 9 of them, no matter what combination, has at least some copyrighted photos. Every Day BILLIONS of photos are posted on various sites around the world. You really think Righthaven and their small gang of lawyers is EVER going to make even a dent in that? Righthaven is trying to hold back the ocean with a broom.
Newspapers are throwing good money after bad by even attempting to stop it.
Here is the only way newspapers can.
1. Stop inviting people to share.
2. Make the images not right clickable.
3. Put watermarks on the images.
4. Ask people nicely not to put their stuff on their sites. It worked for Gary Larson of Far Side.
Righthaven is merely going to upset enough people that laws will change and judges will rule against them and newspapers will find they have less copyright protection, not more.
Newspapers also need to understand that bloggers are in a symbiotic relationship and both mutually benefit from each other. Bloggers and aggregaters drive traffic to their sites. The more traffic the more advertising dollars they get and everybody wins. If Righthaven were to succeed (which they cannot) then newspapers will see less traffic and advertising will find greener pastures, and newspapers will go the way of the dinosaur.
"You give me any 10 websites with photos on them and I would, with great confidence, say that at least 9 of them, no matter what combination, has at least some copyrighted photos. "
I give you 10 where you will not find copyright pirate photos.
lasvegassun.com
lvrj.com
denverpost.com
http://www.wsj.com/
http://www.usatoday.com/
http://www.latimes.com/
http://www.washingtonpost.com/
http://www.nydailynews.com/
http://www.nypost.com/
http://www.chicagotribune.com/
http://www.chron.com/
"It worked for Gary Larson of Far Side."
I rank that up with "Righthaven is going to bring the Internet down."
Examples of the "success" of asking nicely:
http://www.google.com/images?hl=en&r...
http://members.tripod.com/piro_maniac/FA...
http://hubpages.com/hub/Gary-Larson
Don't steal.
Don't be a pirate.
That will shut Righthaven down.
Rock
I should have said any non Newspapers or professional sites. The rates is still high for commercial sites and even government sites have been known to have copyrighted images. Plus Righthaven is suing a Newspaper so you can't even guarantee that.
Gary Larson plea was successful put obviously it can't be completely stamped out. You are naive to think people are going to stop. Do speed limits stop people from speeding? Infact one of the reasons we did away with the 55 mph speed limit was because the vast majority of people no longer complied with the law. When most people don't comply with a law it is a good chance that there is something wrong with the law and not with the people.
One thing you can do to thwart Righthaven and that is to do a Google search for the TSA image and the Vdara Death Ray image and go to the sites that have posted it. Then either email or leave a comment warning them about Righthaven and that they may be sued. I have done many of these but there are so many. If people get it off their sites they may be spared a lawsuit and Righthaven's dastardly plans will be foiled.
vdara death ray
http://www.google.com/images?um=1&hl...
TSA image
http://www.google.com/images?um=1&hl...
People I have warned have been removing the photo, much to the shagrin of Righthaven. I even sent an email to DeadSeriousNews warning them. So this notion that warning letters does not help is a bunch of BS and it cost me nothing to do it.
Hopefully my efforts has cost Righthaven some potential victims.
"So this notion that warning letters does not help is a bunch of BS and it cost me nothing to do it."
Perhaps you should offer your services to LVRJ and the Denver Post for all their news stories and images.
I would image it would be a full-time job.
Are you going to buy some software to help find the all the LVRJ stories and images that are pirated?
Are you going to keep track of them and who you sent take-down notices?
You got 40 hours a week to spare.
You could be rich or something.
Also you need to followup on each one to make sure that they actually comply with the take down request.
You also are required under the law to have a system to deal with take-down notice rejections.
You probably need to form some LLC or something to protect against lawsuits for in DMCA if one sends a improper or invalid take-down notice then they can be sued. They can sue you for damages plus legal fees.
You should be careful, dude.
Rock
Thanks for your concern
I am not wording them like a take down notice and am not claiming to be the copyright holder. I am simply explaining to them that Righthaven is actively suing people who have posted the image. I specifically worded them as to not leave that impression.