Righthaven Goes After Pajamas Media, Despite DMCA Agent & Strong Fair Use Case

from the thought-righthaven-was-avoiding-those-things dept

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.

Filed Under: copyright, dmca, fair use
Companies: pajamas media, righthave

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  1. identicon
    Dram Carson, 9 Feb 2011 @ 6:33am

    Abuse of the law: the courts are not your ATM!

    Righthaven is just the most blatant, egregious offender. There are lots of law firms, and loads of "rights holders" (notice they NEVER refer to authors/writers/photogs, etc? No aggrieved party that actually wrote/created something, never!) who have been on a suing spree the last 3-4 years (RIAA, MPAA, US Copyright Group, etc.). And all the bills in Congress written by industry lobbyists to block websites, cut-off users, etc. It looks bad, but I think maybe it has a silver lining: to wit, publishers, record labels, newspapers, movie studios etc. used to have a near-monopoly on content, esp. NEW content. That control is almost entirely gone. With less than $5K worth of equipment (and another $2-4K in computer HW & SW), anyone can shoot, edit, and distribute a feature film of very high quality. For less than half that, a music CD. And for a tenth that, an online book/blog/magazine complete with video. SO I think maybe all the suing is the last gasp of panic before reality sets in and the old guard of corporate content/rights holders accept the world has change. This certainly happened before: in the early 80's with Compact Disc technology; in the early 50's when TV threatened movie studios; and in the late 20's when radio spread faster than the internet or TV ever did. And after all the fuss died down, we were left with a more dynamic & diverse arts & entertainment field. I believe all the drama about IP rights at the moment is a similar phenomenon. I only regret that several thousand decent, normal, good people have been, continue to be, pushed around and injured by these legal thugs. This too shall pass!

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