New Newspaper Business Model: Create Compelling Graphic, Wait For Others To Use It... And Then Sue

from the righthaven-way dept

As a bunch of folks have been submitting, it appears that Righthaven's latest strategic shift is to sue a bunch of sites that posted a popular illustration that was published in the Las Vegas Review-Journal. The story had to do with the so-called "Vdara death ray." The Vdara hotel on the Strip in Vegas apparently was built in such a way that at certain points, the sun would reflect off of the building in a focused manner, down towards the guest pool area, and it actually singed one guest's hair. The story is the sort of thing that goes viral quickly, and became fodder for talk shows and comedians and such. And, not surprisingly, a variety of sites used the illustration that was published in the LVRJ to explain the "death ray." So, now, of course, Righthaven is suing a whole bunch of them. Considering that this is a story about the image, and we're commenting specifically on the image itself (not just the story), it seems likely that posting this particular image here is fair use -- though I will follow Wired's lead and use the version of the image that was from the lawsuit filing, rather than the original image:
While the specifics in different cases may vary, I would imagine many would have strong fair use claims as well. It's hard to see how posting this image harms the LVRJ, and it seems quite likely that it would actually draw more people to finding the original article. To be honest, I first heard about the Vdara death ray a few months back when I saw this image on another site, and then went to the original LVRJ article.

Either way, with this new effort, it suggests increasing desperation on Righthaven's part. But, you can just see the next step should these cases actually lead to cash: just keep creating "viral" type images, wait until people highlight them, and then sue, sue, sue, until the world over learns to simply avoid the LVRJ or other Righthaven associated newspapers entirely.

Filed Under: copyright, death ray, fair use, images, las vegas review-journal, vdara
Companies: righthaven, stephens media

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  1. identicon
    Ted Barrons, 23 Dec 2010 @ 8:40am

    I don't agree

    "Your TOS, if they're enforceable, do not affect third-parties like Righthaven since they never agreed to your TOS."

    Not true. To survive an immediate MTD on proof grounds, Righthaven would have to prove they have proof of the most basic claims in a complaint to survive an MTD.
    There is no way to substantiate a claim of infringement without their having used my site. Even if Righthaven itself used another party to obtain "proof" of infringement, that party (under terms of my TOS), have agreed to indemnify me of all legal disputes arising out of THEIR use of my sites.
    There is no way around it for Righthaven or their clients. If they use my sites, they have agreed to the terms. Every page clearly states that. I will not be subjected to jurisdiction of any forum outside my own. Even if a Nevada district court chose to ignore the TOS usage contract, the federal court in my jurisdiction has repeatedly upheld TOS and, I predict, would never uphold/enforce a decision from another federal court that contradicts what they and the CA in my jurisdiction have established over years of case decision.
    I know civil trial attorneys hate monkey-wrenches like this, but that is the real world for anyone who has been there and knows the truth. Been there and done that.
    I have operated my sites since 2003 and survived five civil cases at the district level and two at the CA. One was won on FRCP "clear and specific statement" requirements and the rest on TOS validity and enforcement.
    If Righthaven were to file against me in Nevada, as the forum owner, and not the original poster, I really don't care if they are awarded a million $$$. Good luck getting the local court of competent jurisdiction to enforce the judgment.
    BTW, the complaint filed here, where TOS validity has been established for several years, would be devastating to their business model, and they would lose.

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