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Monday, March 28, 2011 | 1:30 p.m.
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The writer of a story about Las Vegas copyright enforcement company Righthaven LLC is now being sued by Righthaven.
Righthaven, which sues over Las Vegas Review-Journal and Denver Post material posted online without authorization, filed suit Friday in Denver against Eriq Gardner, author of a December story on the Ars Technica website.
The story was about a Righthaven lawsuit against Matt Drudge over a Denver Post TSA pat-down photo.
In Friday’s lawsuit, Righthaven complained not about Gardner’s story, but that he had infringed on Righthaven's copyright by including with the Ars Technica report the pat-down image as it appeared on the Drudge Report.
Righthaven says the image on the Drudge Report infringed on its copyright -- and that its copyright was infringed again when the Drudge Report's display of the image was reproduced on the Ars Technica site.
The lawsuit against Drudge was earlier settled under undisclosed terms.
A message for comment for Gardner was left through the Ars Technica website.
The Ars Technica report credited the image from the Drudge Report like this: "The photo in question as it appeared on Drudge Report."
Ars Technica is part of Conde Nast Digital, a division of Advance Magazine Publishers Inc.
Ars Technica itself was not sued, potentially because it has posted a notice on its website for receipt of copyright complaints in compliance with the Digital Millennium Copyright Act. Such notices protect website owners from lawsuits over posts by third parties, typically message-board posters.
The image post Righthaven sued over on Friday appears to be part of a news report as opposed to a message-board post.
The image Righthaven sued Gardner over remained available Monday on the Ars Technica website.
Righthaven, as usual, seeks $150,000 in damages against Gardner.
Righthaven usually seeks forfeiture of website domain names in its lawsuits – but not in this case as Ars Technica is not being sued.
"Mr. Gardner reproduced an unauthorized copy of the photograph entitled: 'TSA Agent performs enhanced pat-downs' … on the Internet domain found at arstechnica.com," Righthaven charged in the lawsuit.
"Mr. Gardner did not seek permission, in any manner, to reproduce, display, or otherwise exploit the work. Mr. Gardner was not granted permission, in any manner, to reproduce, display, or otherwise exploit the work," the suit alleges.
Chunky says:
They (Righthaven) are just reaching for straws to feed off anyone and anything they can.
That's what Chunky thinks... that is printable at least!
More evidence that Righthaven is filing suits regardless of court president and a total disregard for even time honored understanding of fair use.
Righthaven is also suing DailyKix.com and Mixx.com for the use of thumbnails which there is already a court precedent that allows for thumbnails.
http://righthavenvictims.blogspot.com/20...
Righthaven is abusing the court system and ignoring established court precedences and ignoring copyright law itself.
Its only a matter of time before the attorneys that are handling a case out of South Carolina take dow the pond scum over at Righthaven. They will be but a fleeting memory in the coming months.
Shouldn't have settled that Drudge Report suit so quickly.
surprised righthaven is still around... pockets must be getting empty soon.
Righthaven cases are becoming so absurd lately, more than usual, that if they cannot get settlements from these people it will prove extremely costly for them in court.
Rock has been very quiet lately. I wonder if Righthaven is becoming more than he can even stomach.
I was under the impression that they used the B&W photocopy that was used in the lawsuit court documents.
Hundreds of people are hosting the PDF file where this "EXHIBIT 2" photo is displayed. Will they go after all of those people too? Go after the courts and government for illegal hosting the court exhibit files.
That website basically copy and pasted that headline and photo as it EXISTED on the court document, as it existed in real life. So shouldn't righthaven be going after the US government for taking their own EXIBIT photos and hosting them online?
What am I missing here?
I thought a lot of documents become Public Domain, and it seems within that websites right to use that photo exactly as it was presented in the court exhibit...
Yes Righthaven is REALLY going out on a limb on this one. It shows a desperation on their part. They are truly becoming unraveled.
Court exhibits are not copyrightable but I wouldn't put it past Righthaven to sue anyway. They believe themselves to be a law unto themselves.
There ultimate goal is to abolish any concept of fair use.
Plus there is also an extremely strong fair use argument since the story was on the drudge lawsuit itself.
What part of "the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research." does Righthaven not understand?
They are in serious trouble filing all of these frivolous lawsuits.
Also they are going after him personally not his employer because they have a DMCA registration. The thing is unless he is a freelance writer he is not subject to lawsuits. It is just like you cannot be sued personally for what you do on the job.
This is so weak, it shows Righthaven lawyers are a bunch of pathetic know nothings where it comes to the law. They are a disgrace!
It is actually an interesting question of just what constitutes "fair use" for reporting purposes.
This is similar in nature to whether or not a release is needed to use a photo of a person in a news story.
I *think* this will come under "fair use" in the course of reporting the facts. The problem is that the Drudge Report case was settled before a trial.
If that case had gone to trial, and Drudge had lost, then I could see an argument in Righthaven's favor on this. Had Drudge prevailed then this new suit is worthless.
As it stands, if this goes to trial, I see it being a toss up, with "fair use" having a slight advantage.
I agree with others, Drudge should have defended their case rather than taking the easy way out with a settlement. It would have made things much better for everyone else.
Watch them sue the Las Vegas Sun for displaying the court exhibit. I would not put it past them.
botfx
I am so angry at Drudge for settling. I think he may of just considered it a minor annoyance but did not think about the implications.
He above all could have put a stop to this with a phone call to Dean Singleton telling him he would never link to another News Media newspaper again and call a few major advertisers and tell them the same. Dean Singleton would have been forced to put a stop to it by the advertisers. Drudge produces millions of hits when he links to a paper and advertisers wouldn't stand to be denied that traffic.
One can display a thumbnail image of the original only if they give credit to the original site and give a link back to the original site.
Good lawsuits by Righthaven.
These people should settle.
They will settle in droves when the 9th Circuit overturns the two dismissal orders by the lower courts.
I think Rock may have been taken off the Righthaven payroll.
Rock
Oh so you do exist. The problem is Mixx.com and dailykix had very small thumbnails that were never on their servers. They merely have code that queries the sources server and directs the information to the users browser. The 9th Circuit Court has already ruled that this is legal and does not constitute an infringment.
http://www.publicknowledge.org/pdf/p10-v...
Righthaven is completely ignoring this legal precedent.
"Also they are going after him personally not his employer because they have a DMCA registration. The thing is unless he is a freelance writer he is not subject to lawsuits. It is just like you cannot be sued personally for what you do on the job."
arstechnica.com is not his employer.
It is a blogging site that even you can join and post stories on.
arstechnica.com has filed for Safe Harbor protection so whenever a blogger posts a story that infringes on copyright if the owner wants to sue arstechnica.com that they first have to send a takedown notice to arstechnica.com and if arstechnica.com refuses to take it down then they copyright owner can sue arstechnica.com.
Safe Harbor never can be applied to the actual infringer.
The copyright owner can always directly sue the infringer.
If the owner of a website blogs on his own site and the site is in a Safe Harbor the owner of the copyright can just directly sue the owner without a take down notice.
If a employee of a website blogs on the owner's web site and the site is in a Safe Harbor the owner of the copyright can just directly sue the owner without a take down notice.
Safe Harbor is only when 3rd parties post material on the website like in this case.
Righthaven is not suing arstechnica.com.
They are suing the accused infringer.
Rock I have gone through your past comments and you have been wrong every step of the way. You have been wrong on every prediction you have made regarding rulings. You were positive that the Democratic Underground would lose. You were positive the judge would rule against using a full article was infringement. You have been WRONG WRONG WRONG.
Does B&W or color matter in this instance? The original photo everyone is using is the color version with full detail and pixels. The B&W version is and was only seen in the court exhibits. It shows degraded quality all around. This writer got the version from the only source with the B&W photos, which was the court exhibits.
The quote under the photo is not entirely true.
"The photo in question as it appeared on Drudge Report". Drudgereport from what I've gathered has never used a B&W photocopy of a photo as their main headline. The quote should read, "The photo in question as it appeared in the Court Exhibit documents"
Now if you look at the PDF file provided by the sun, they have a PHOTOCOPY of a PHOTOCOPY and you can't even make out what is really being shown off as the exhibit file.
Now if you wanted to willingly steal a photo, why would it be a B&W degraded quality photo?
Someone else mentioned it here but I would not be shocked if Righthaven started to sue websites that had the court exhibits hosted.
Righthaven's main objective is to get settlements. The law is secondary. Problem is though they have lost so many cases and made so many screw-ups that they have really lost the fear factor. Less people are settling now.
Here is a list of Righthaven's major screw-ups
Righthaven has sued the very source of a story that was published on the Las Vegas Review Journal.
They have twice sued the wrong people.
They have sued the Toronto Star that is an AP affiliate that more than likely had permission from the Denver Post.
They have managed to actually dilute the copyright protections they claim to "enforce". It has been ruled fair use that an entire article can be copied in some situations thanks to Righthaven.
They have yet to win a single case in court apart from some default judgments where the defendant simply never showed up. They have yet to earn a single penny based on the merits of a case but only from strong-arming and intimidating their victims into settling.
They can't find two of their defendants and since they could not be served with a court summons the cases were thrown out.
They had the unmitigated gall to complain to a federal judge that the defendant's attorneys in the EFF (Electronic Frontier Foundation) were engaged in "litigation overkill" and that their actions were running up legal fees.
They asked a South Carolina Lawyer to send them advance notice if and when the lawyer files a counter-suit. The SC Lawyer smacked them down by telling them he would give them the same courtesy that Righthaven gave his client when they refused to send a take-down letter before proceeding with a lawsuit.
Their lawsuits claim they have suffered "irreparable damages" but have yet to identify exactly what these "damages" are.
They have yet to be awarded a single web-site domain name even though they use this to coerce people into settling and has no basis in copyright law.
They have sued Brian Hill who they cannot collect from even if they win. (which they won't)
They have by far the worst website on the planet that consists only of a single large jpeg image that takes up the entire screen. Apparently this "technology company" has no one who knows how to set up a website.
> Rock I have gone through your past comments and you have been wrong every step of the way. <
this is nothing new for Sher^^^ -- I mean Sargent Frederick.
Get him to tell you about the time he got sued for big bucks, and lost. That settlement might still be the high-water mark in this state. Why'd he get sued? He was f'ing wrong ---- as usual.
Remember that one Sher^^^ -- I mean Sargent Frederick? lol.
> Drudge should have defended their case rather than taking the easy way out with a settlement.<
Drudge, like Angle, "settled" for $1. this is why undisclosed terms of settlements should be off the table in ALL litigation. PERIOD.
And Sargent Frederick --- I see you're feeling more positive about the 9th today. My goodness, you're certainly showing signs of manic behavior. Need to adjust your meds a little?
Yes if a plantiff wants to bring the courts into it then all settlements should be public record.
I'm pretty mercenary when it comes to making money by setting up web sites. If the money is right, I'll usually do it. But even I would have to think twice before accepting a commission from Righthaven to design a site for them.
I think at the very least I would have to have a perpetual hold-harmless from copyright litigation if I used their site as a reference in addition to about 25x my usual fee. :)
I think Gardner should file a counter claim for defamation of character based on the fact that this is suit is clearly worthless. He should not only ask for all legal costs, but damages as well. And he should get them.
Let's hope he has the resolve and resources to defend against this.
Seeing that the photo in question was taken from an exhibit document available from numerous court reporting services, including the government, then Righthaven is saying that they can sue all of them as well for making the exhibit available to the public, even for a fee.
This suit is truly idiotic.
Righthaven continues to amaze me with the implications of their suits. At this point, I wouldn't be surprised to say a newspaper trade association issue a cease and desist to RH to prevent further damage to the protection copyrights afford now.
botfx if you notice Righthaven is now exclusively suing over this photo. It is most likely because they have already been cut off of their major sources of copyrights. They are a threat to the newspaper and publishing industry. Infact if they get one more ruling that delutes copyrights I bet you will see other papers filing lawsuits against them.
Most likely a judge is going to rule that share buttons and alike have nullified newspapers claim to copyright protection as far as reposting on websites is concerned.
What is interesting is Righthaven is suing Mixx.com who is one of the 322 different social bookmarking services that the Denver Post invites people to share the content including the TSA image.
Further evidence that Righthaven is doing little or no research on who they are suing prior to filing. They have even sued Pajamas Media that HAS a DMCA safe harbors registration.
Aren't court documents public domain by definition? The image on the website is clearly from a court document.
If anyone has standing to sue for infringement it would be whatever legal service provided the exhibit the image was taken from. If I am correct about court documents being in the public domain then Righthaven itself intentionally put this particular image in the public domain.
I disagree that "share" buttons nullify copyright claims. All of the share buttons I have seen on newspapers, as well as the ones I use, only share a link to the article itself and do not provide text or content. The clear intent is to share the location of the content, not the content itself.
No, almost all of the cases so far come down to what is "fair use" and whether or not a take down notice should have been issued, whether or not such is required by law. Righthaven has raised too many questions about "clean hands" and other concepts (i.e. barraty and champerty) at this point that must be resolved. They have opened a real can of worms.
> Aren't court documents public domain by definition?
yes.
botfx
I am not saying it is right to take images because of the share buttons but so far some of the judges have given a lot of credence to this argument. There is a good chance one of these judges is going to agree that there was an implied licence.
If Righthaven was to win this case (which they won't) public documents could no longer be public if they have any copyrighted material on them and there isn't a single copyright case that doesn't because they have to file it as evidence. That will never happen. Righthaven has gone completely off the deep end.
Righthaven knows this too but is counting on getting a settlment. I have a feeling they are not going to get one and this is one out of many cases that Righthaven is going to pay dearly for. This one may even have civil rights implications since it cuts to the core of the public's access to public records.
This is where Righthaven is doing everyone who has an interest in copyright law a disservice. The implied license defense based upon "share buttons" should be given no weight at all.
But Righthaven's actions in general have been so offensive to the bench that arguments that would in other circumstances be discarded without comment are being considered if only to slap RH down.
Yes Denver Post and LVRJ are putting their entire industry at extreme risk. I agree with you though that share buttons should not mean a free for all but because of Righthaven's actions that may very well come to pass.
This is why lawsuits should be a last resort because you never know what can happen or how a judge or jury will rule. Most reasonable people understand this which is why they don't sue first and ask questions later.
But of course Rock's answer is that everyone should just settle and not defend themselves in court.
In Perfect 10 v. Amazon (and Google) then 9th focused on the "transformative use" of thumbnail images. I seriously doubt that these websites could offer the same fair use defense of "transformative use".
Sorry Rock but these sites Mixx and DailyKix are for the express purpose of aiding people in finding articles. There only reason for existing is to be transformative
Here is from the court ruling:
http://www.publicknowledge.org/pdf/p10-v....
"Google's use of thumbnails is highly transformative.
In Kelly, we concluded that Arriba's use of thumbnails was
transformative because "Arriba's use of the images serve[d]
a different function than Kelly's use--improving access to
information on the [I]nternet"
This is also why Facebook and Facebook users are not sued when they post an article on their walls. Facebook by default places a thumbnail of one of the images in the story when you post a link. You have to actually specifically go to "no thumbnail" to get that option. That is not the default. They can do this because thumbnails have been ruled to be fair use.
You even admitted that yourself as to a reason why deadseriosnews have not been sued and theirs really isn't a thumbnail.
You also defended Shermy's use of the Saturday Night Live skit on his blog because the video was not hosted on his server but streamed from Youtube.
The Mixx and DailyKix sites do not have any images on their server they merely query the sources server to send the information to the users browser. Infact when Righthaven looked up their site the only place that image actually appeared or existed was on Righthaven's computer never on Mixx's or DailyKix servers.
Ken, your last sentence is somewhat ironic in that netiquette says that one should serve thumbnails from one's own server, not the source, so as to not to cause undue bandwidth cost for the originator.
Also from the 9th Circuit Court Ruling:
6] Google does not, however, display a copy of full-size
infringing photographic images for purposes of the Copyright
Act when Google frames in-line linked images that appear on
a user's computer screen. Because Google's computers do not
store the photographic images, Google does not have a copy
of the images for purposes of the Copyright Act. In other
words, Google does not have any "material objects . . . in
which a work is fixed . . . and from which the work can be
perceived, reproduced, or otherwise communicated" and thus
cannot communicate a copy. 17 U.S.C. 101.
The 9th Circuit Court held that simply having code that may fetch a copyrighted image is not enough to be considered an infringement. If that was the case the entire Internet would be illegal.
There is nothing even close to "transformative use" in the DailyKix.com case.
They are duplicated an exact replicate of news story that came from DeadSerious.com including the copyright infringement of image.
There is nothing transformative about that.
The bulk of the Google's fair use defense is built around "transformative use".
The DailyKix.com would have a stronger fair use case if they cited the original source and linked to it even if it was the DeadSerious.com site.
They did. infact the Deadseriousnews site is exactly the site that was being offered on DailyKix. Funny how DailyKix is sued for something on Deadseriousnews but deadseriosnews is not sued. Makes you think Righthaven doesn't want Deadseriousnews taking that image off does it?
Since Deadseriousnews is actually on the court filing it proves that Righthaven is well aware of Deadseriousnews but chooses not to sue them.
Infact DailyKix uses the Mixx API to mirror what Mixx has put on theirs and Mixx is one of the choices for both Deadseriousnews and the Denver Post use to share the links which in both cases offers a thumbnail.
Both Mixx and Dialykix also have the headline with the story and if you click on either the thumbnail or the headline it takes you directly to Deadseriousnews in this case or if it was posted for Denver Post it would take you directly to the Denver Post so WRONG AGAIN ROCK. you are on a roll!
> "The thing is unless he is a freelance writer he is not subject to lawsuits. It is just like you cannot be sued personally for what you do on the job."
I don't think he freelances, considering he is Managing Editor of Ars.
Ars will make mincemeat out of those Righthaven lawyers. They have proven to be complete paper tigers. They are like schoolyard bullies that act tough until they are confronted. They can't bully the judge which is why they never win in court.
The Sun has now published two court exhibits that contain a (poor quality) B&W reproduction of the image in question. The first was on this story http://www.lasvegassun.com/blogs/busines... and the second on the current story.
I ask you, SgtRock, what is the difference between what Gardner has done and the Sun posting an excerpt from the court documents, especially since the image on Gardner's website (if you have looked) is clearly taken from a court document?
Do you think the Sun is infringing by publishing a document containing the image? Do you think Righthaven should sue Steve Green for reporting on this story and supplying a copy of the alleged infringing image?
I think Gardner has very strong grounds for a counter suit and damages to his mental well-being for pain and suffering caused by having to deal with what is obviously a shakedown attempt with zero basis in law.
What part of "public domain" does RH not understand, all of it?
boftx
If you look at the court exhibit for this case:
http://media.lasvegassun.com/media/pdfs/...
and the Drudge Exhibit 1
http://docs.justia.com/cases/federal/dis...
These images match up perfectly including scan lines and smudge marks. These are the same. It would be statistically impossible for them not to.
Ars is going to own Righthaven after this. Infact I predict the judge will even slap sanctions on Righthaven for filing a suit based on publicly available documents. I am going to write this up on righthavenvictims.blogspot.com so everyone will know and send this information to Ars and their legal team. RIGHTHAVEN IS TOAST!!!
I have no doubt that Gardner can not only defend this, but counter as well.
You have to wonder just who is filing these suits, does RH have a high school student looking for this image and filling out a standard form then hitting submit without supervision?
This suit is basically saying that every court document service, including the government, is violating copyright laws by publishing documents that contain exhibits depicting alleged infringing images. That is insane!
Even if it wasn't from the court filing this is still an extremely strong fair use claim since the story is of the Drudge Lawsuit so either way Righthaven has once again filed a lawsuit that will put them even deeper in hot water.
botfx
Yes I do believe they just have a couple of flunkies that do Google Searches and don't check the facts before filing.
After looking at the exhibits I have determined that both are facsimiles and not the original exhibits which explains the scratches and lines on both the exhibits. This means the two really cannot be compared by these pdfs alone. We would have to see both the original court filings and not a fax to see if they match.
Go to the Ars website, search for "Drudge TSA", and view the image details for the image that is still being displayed. It is immediately obvious that the image was produced from a screen shot of a PDF viewer displaying the court documents from the Drudge suit.
Righthaven has simply blown it even worse than suing an AP affiliate with this one. I don't see how there can be any basis in law for this one and I suspect Gardner can file his own suit for pretty good damages.
This lawsuit is really a stretch.
Notice how we heard all the talk about the poor, the unemployed and the upside down home owner's should "get over it," "pull themselves up by their boot-straps," "get it together," etc. by the crowd over at the Brand X Vegas Newspaper? Yet, have we seen the former Publisher or the former editor go out and get better jobs since their "demotions."
Come on now Mr. Cowboy Hat and Mr. "Mastermind" Sherm, I thought you guys were private sector tigers. How come you can't get better jobs like the ones you had? Won't anyone else hire you?? Maybe you can get a gig with News-Corp as a commentator on FOX?
Somebody needs to take on Righthaven and put 'em out of business!
In my estimation, Righthaven (Gibson) has thus far settled approximately 130 cases, give or take a few, which would put their business model making a sizable profit. Conservatively, I would also estimate that their revenue stream has generated in the neighborhood of $600,000 at this point. I would think that in a few months, Gibson will have made his first million in this venture.
I would also assume for tax purposes, jurisdiction is important to him where Nevada is concerned.
Arguably many of those cases should not have settled, but the defendants found it easier and/or cheaper to just make the cases go away.
On the other hand, the cases that are being defended seem to have a reasonable chance of being successful, which greatly increases costs for Righthaven. I would suspect that any successful defense at trial will set precedent that will severely curtail Righthaven's ability to strongarm settlements in the future except in truly legitimate cases.
I don't think any of us have a problem with going after actual infringement (but even so many of us want to see litigation used as a last resort if only because of how we perceive the Internet culture.)