It's been a little while since we covered what newspaper copyright troll Righthaven was up to, but Eric Goldman alerts us
to one recent legal filing from the operation that raises some questions. Historically, Righthaven has been careful to avoid websites that have registered a DMCA agent, knowing that under the DMCA it's supposed to issue a takedown notice before suing. However, this case, in going after the successful blog network Pajamas Media, appears to ignore the fact that Pajamas Media has registered
Of course, one argument to get around this is the claim that the post is written by an "employee," rather than a user, but even so, Righthaven is probably skating on pretty thin ice here. Under the DMCA there's a clear process to remove infringing works, and Righthaven has apparently failed to follow that process.
Separately, after getting smacked around in some early cases, Righthaven had promised to avoid filing its lawsuits over cases that pretty clearly appeared to be fair use. In this case, the complaint is about a photo concerning TSA patdowns that originally appeared in the Denver Post, which was later posted as a part of a story to Pajamas Media. But, there's a really strong fair use claim here. If you look at the original post -- now sans photograph
, you see that the post itself includes significant commentary about the image
. 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. Newspapers and other media have long used similar situations to claim fair use over imagery.
If Pajamas Media actually fights this, it seems like Righthaven may be in line for another fair use smack down.