by Mike Masnick

Filed Under:
copyright, dmca, fair use

pajamas media, righthave

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.

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  1. identicon
    Anonymous Poster, 7 Feb 2011 @ 1:48pm

    Righthaven doesn't seem to like playing by the rules.

    Maybe they just don't like that pesky First Amendment.

    Either way, they deserve to get a smackdown from a judge for this incompetence.

    reply to this | link to this | view in thread ]

  2. icon
    average_joe (profile), 7 Feb 2011 @ 1:53pm

    That does sound like it would be a great fair use argument. But it seems to me that this suit ends at the lack of a takedown notice. If the author of the article works for the blog, then my understanding is that a takedown notice would be necessary first.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 7 Feb 2011 @ 2:04pm


    Actually, while there is a process outlined in the DMCA regulations, it does not preclude other methods to see redress.

    reply to this | link to this | view in thread ]

  4. icon
    The eejit (profile), 7 Feb 2011 @ 2:21pm

    Re: Re:

    Then why does the notice-and-takedown even exist? IF you can just ignore it anyway, what's the point of having the law at all? Anarchy would seem to be a better form of government.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 7 Feb 2011 @ 2:28pm


    The DMCA lability limitations for service providers do not apply to an entity with knowledge of the infringing act. If a Pajamas Media employee engaged in the allegedly infringing activity, then Pajamas Media had the requisite knowledge, and the DMCA takedown procedure is inapplicable.

    Also, it's questionable whether the DMCA ever actually requires sending a notice prior to an infringement suit, though a plaintiff would be better positioned to argue that the defendant had knowledge of the infringement if he sends such a notice.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 7 Feb 2011 @ 2:30pm

    Re: Re: Re:

    Well, it's a handy way to present notice to service providers and give them a clear choice: comply and get liability, or don't and roll the dice.

    Also, if you don't send the notice, the service provider might be able to get a limitation on liability by claiming it didn't know about the infringement (which it can't claim if it gets a takedown notice that complies with the statutory formalities).

    reply to this | link to this | view in thread ]

  7. icon
    average_joe (profile), 7 Feb 2011 @ 2:32pm

    Re: Re:

    I had it backwards there. Since the post wasn't by a user, the procedure under 512(c) doesn't apply. My bad.

    But you've got me curious... Are you saying that even if this was posted by a user, a notice wouldn't be necessary before bringing suit (assuming they have a registered agent, and assuming they haven't lost their safe harbor for whatever reason)? If so, I had that wrong too. Thanks!

    reply to this | link to this | view in thread ]

  8. icon
    average_joe (profile), 7 Feb 2011 @ 2:39pm

    Re: Re:

    Very interesting. For some reason I thought that sending a takedown notice was a prerequisite to filing suit, but looking over 512(c), I see it doesn't say that at all. Thanks!

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 7 Feb 2011 @ 2:45pm

    Re: Re: Re:

    To me, the law is not clear.

    It says a service provider won't be liable for user content if it (1) does not have actual knowledge of the infringement, (2) does not get a direct financial benefit, and (3) promptly removes material after receiving a conforming takedown notice.

    It does not specifically say that a plaintiff must send a notice before suing a service provider.

    However, if the plaintiff sends a notice that doesn't conform, that notice can't be used to show knowledge under (1). But, presumably, other facts can be used to show such knowledge.

    To me, that doesn't necessarily require a takedown notice before suing.

    reply to this | link to this | view in thread ]

  10. icon
    average_joe (profile), 7 Feb 2011 @ 4:45pm

    reply to this | link to this | view in thread ]

  11. identicon
    Ken, 7 Feb 2011 @ 5:09pm

    Righthaven Flaunts the law

    Either Righthaven doesn't care about the law and will try and extract a settlement despite the law or they are looking for a test case to challenge the safe harbors provision written in copyright law.

    reply to this | link to this | view in thread ]

  12. identicon
    Michael, 8 Feb 2011 @ 4:42am

    Re: Re: Re:

    It is not a requirement, but in cases of user-added content, it is pretty much impossible to prove that the service provider was aware of the content and that the content was infringing.

    Without a takedown notice, the provider can reasonably make the assumption that the content being added is being done so either by the copyright owner, or someone authorized to distribute the content (which is also likely in their TOS).

    In this particular case, it may be possible to argue that since the content was actually added by an employee, the company had direct knowledge that this was not the case. There are lots of problems with that as well, but it is slightly stronger ground than if it was a user that uploaded the content. As Mike noted, Righthaven has had lots of fair use issues already, so a judge that looks at the history a bit is likely to look at this case and send them packing again - they should know better by now.

    reply to this | link to this | view in thread ]

  13. icon
    Shon Gale (profile), 8 Feb 2011 @ 6:46am

    Smackdown or not. Their suit is enough to drive some startups out of business. In that case only the mafia business model will work. Drive me out of business, I drive you out to the back road.

    reply to this | link to this | view in thread ]

  14. 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!

    reply to this | link to this | view in thread ]

  15. 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!

    reply to this | link to this | view in thread ]

  16. icon
    average_joe (profile), 9 Feb 2011 @ 7:44am

    Re: Re: Re: Re:

    So you think the person whose IP is being used without permission should have to ask for the violator to stop using it before suing them, but you don't think the person doing the violating should have to ask the IP holder for permission before using their IP? To me, the person violating the other person's rights is the party you should be blaming, not the innocent party who did nothing wrong.

    reply to this | link to this | view in thread ]

  17. identicon
    PJ, 19 Jul 2011 @ 3:43am

    I really wish the courts would throw the books at these guys, it makes me so mad

    reply to this | link to this | view in thread ]

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