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 @ 7:15am

    Re: Re: Re:

    @AJ (et al.): To me, a non-attorney with a good liberal arts education and interest in law and public policy, this is a dramatic example of what is wrong with American law today. To wit: common law, as well as custom, wd. expect notice or demand for takedown to be given, and an opportunity to comply afforded. Instances of such expectations or standards are abundant in US and English common law. If I find my property in use, without my consent, somewhere, my first step is to ask for it back, as it were. Implicit is an assumption by me that the infringement is not willful or malicious. Then the person to whom I have made my demand either complies, or shows me where I am mistaken. Only then does the matter proceed to a court. Going ahead with civil lawsuits without notice should only ever be allowed where such notice might result in destruction of evidence, or some direct, material harm to me or my interests. So what's wrong here (and RH and IP/internet matters are but part of it) is that somehow legislators and the courts have been manipulated into turning a fundamental presumption of fair play on its head. The monetary penalties built into copyright law were meant to compensate and to deter, AFTER actual harm had been done, and in the event of willful disregard by the infringer. Similar things have been happening with product liability and other liability law, and with personal injury law. These laws were enacted to protect people and their property, but with IP laws, have become a way of earning a living for attorneys and their clients. Essentially, somehow dishonesty and bad faith have become enshrined in our legal system. Its disgraceful, and had the law been like this in the 19th century, the US would never have risen to its pre-eminent position in so many fields: 10 thousand inventions might never have been, and that many successful companies, brands, products, and projects, and most of the science and technology of the past 150 years would not exist, or wd. have been made elsewhere. It does not bode well for the future of American industry or culture. What could be more reasonable or basic than expecting an IP rights holder to notify an alleged infringer that they MAY be using the holder's property? It boggles the mind that these same people avoid death by speeding bus, falling out a window, or poking themselves in the eye with a kitchen knife!

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