Righthaven defendants respond; more copyright lawsuits filed

Four more website operators have filed court papers denying copyright infringement allegations leveled against them by Righthaven LLC over material allegedly reposted online from the Las Vegas Review-Journal and the Denver Post.

Las Vegas-based Righthaven is the copyright enforcement partner of the Review-Journal and the Post.

Most of its Denver Post lawsuits are over a photo showing a TSA agent patting down the inner thighs of a passenger at Denver International Airport. After the Nov. 18 photo was distributed to media outlets by The Associated Press, it went viral on the Internet and has become a symbol of controversies over aggressive TSA searches of passengers.

One of the website operators sued over the photo, William Szirbik in Spring Hill, Tenn., said in a recent motion for dismissal that the Colorado court lacks jurisdiction over him because he doesn’t do business in Colorado.

Szirbik, who says he runs a website called ScaredMonkeys.com as a hobby, also asserted he didn’t copy the photo from the Denver Post website but instead found it on the site rawstory.com. Szirbik maintains the rawstory.com post of the photo didn’t credit it to the Denver Post or include a copyright notice.

The rawstory.com website, which as early as September reported on Righthaven, was also sued by Righthaven last month over the TSA photo.

Szirbik also said the suit against him should be dismissed because Righthaven had failed to show that in obtaining its copyright registration to the photo on Dec. 8, it had obtained rights to sue for infringements prior to that date.

“Plaintiff must allege that it is the owner of a valid copyright as well as any accrued actions of infringement,” Szirbik wrote in his filing. “Plaintiff fails to do this. Plaintiff does not even mention the transfer of the copyright from the Denver Post to plaintiff.”

While Righthaven’s right to sue over Las Vegas Review-Journal stories has been upheld by federal judges in Nevada, its copyright transfer arrangement with the owner of the Review-Journal is under attack by the digital freedom group the Electronic Frontier Foundation and others.

Also fighting the Righthaven lawsuit against him over the Denver Post photo is Andy Hwang in Hartsdale, N.Y., who said in court papers that he too has no ties to Colorado and isn’t subject to the jurisdiction of the federal court in Denver.

Hwang, who says he has a website called thefatbrat.com, said he has no money to hire an attorney and that he’s a college student.

“This lawsuit has affected my educational experience at my university, of which I am currently attending, and has been an unbearable burden,” he wrote in court papers.

Hwang said he found the photo at the website current.com, “which used the photo to accompany a humorous news story on TSA patdowns.”

“I credited and linked to current.com, whom I reasonably assumed to be the owner of the image,” Hwang wrote. “There was and is no clear and reasonable indication that the airport or persons depicted in the photograph is from Colorado — I assumed it was a public airport in San Francisco, of which the current.com article had described in its story. Looking at the image, no reasonable person would be able to recognize that it originated in a Denver newspaper.”

Hwang said no one from Righthaven asked him to remove the photo before suing him and that the first he heard about the lawsuit was when he was contacted for comment by the Las Vegas Sun.

“The photo was immediately taken down after email notice from the reporter,” he wrote. “According to my blog’s analytics, only 12 people saw that particular posting/image on my blog.”

He also argued that under the Fair Use doctrine in copyright law, the “photo was displayed for purposes of spoofing and comedic satire, as well as commentary on the satirical story current.com had used the photo for, of which I was under the impression was taken during the story coverage.”

“The Denver Post currently offers the option to share/save the same photo on its website, encouraging readers to print and save, and therefore is encouraging readers to share the photo and news with others,” he added.

A court exhibit indicates the post on Hwang’s website, though credited to current.com, has the same headline as a post of the photo on the deadseriousnews.com website. Several Righthaven defendants say they found the photo on the deadseriousnews.com site, which like current.com has not been sued by Righthaven.

The Denver Post TSA photo was still displayed as of Saturday on both the current.com and deadseriousnew.com sites. It’s unknown if Righthaven or the Denver Post have asked the sites to remove them.

It’s also unknown whether the deadseriousnews.com and current.com uses of the photo are allowed under the parody provision of the fair use doctrine of copyright law and, if so, whether the parody defense would also apply in some of the Righthaven lawsuits.

Also recently responding to a Righthaven lawsuit against them over a Review-Journal story were the United States Marijuana Party and Richard J. Rawlings in Peoria, Ill. That story covered a Las Vegas police detective shooting and killing Trevon Cole, who police said had been involved in drug sales.

The defendants said in their reply that the post at issue was protected by the fair use doctrine, copyright misuse by Righthaven and the First Amendment, among other things. Those defendants are represented by Las Vegas attorney Chad Bowers.

Also responding to a Righthaven lawsuit was Thomas J. Leyden, whom Righthaven says did business in Utah as “Strhate Talk Consulting” and owns the website domain name formerskinhead.blogspot.com. He’s accused of copying and displaying a Review-Journal column about the FBI allegedly pressuring a woman for information about the 1998 murders of two anti-racist skinheads in Las Vegas.

Leyden, too, said Righthaven’s claims were barred by the doctrine of fair use.


Separately, Righthaven sued two more website operators over the Denver Post photo last week in federal court in Denver.

The latest defendants are Pamela Spaulding in Durham, N.C., whom Righthaven says runs the website pamshouseblend.com; and Q Communications Inc. and Don Tuthill, whom Righthaven says are associated with Passport Magazine and the travel website passportmagazine.com.

Court exhibits show the Denver Post photo on the Passport website was credited to the Post; while the Post was not credited on the Pam’s House Blend site.

An exhibit indicates Spaulding re-posted the photo and an accompanying commentary from the website ranker.com, whose owner Ranker LLC is also being sued by Righthaven over the photo.

“I haven’t received this lawsuit, This is the first I’ve heard of it,’’ Spaulding said Saturday after the Las Vegas Sun contracted her about the lawsuit.

“It’s absurd. The photo is all over the web, and I cited the story with the photo as it appeared on the website Ranker as part of its parody list of TSA ‘violations.’ And my post doesn’t target Denver readers in the least,” she said. “Also, where is the takedown notice before filing a lawsuit? I was never notified about the infringement with a takedown email or snail mail to rectify the situation from their perspective.”

Righthaven, however, says takedown notices are not required for situations where material is posted by website owners and webmasters. Takedown notices are also not required for third-party message-board posts on websites that fail to register certain information with the U.S. Copyright Office.

And while many Righthaven defendants complain about being sued without warning, Righthaven charges in its lawsuits that those same defendants didn’t bother to contact the Review-Journal or the Denver Post for permission to re-post material from those newspapers.

As usual, Righthaven demands damages of $150,000 apiece from each of the new defendants as well as forfeiture to Righthaven of their website domain names.

A message for comment was left with Tuthill.

The two new cases lifted Righthaven’s lawsuit total to 241 since March 2010.

Separately, Righthaven lawsuits settled or otherwise closed under undisclosed terms recently involve defendants the Lone Star Foundation, Stern and Company, Bonnier Corp., Michael Rucker and Leighton Law P.A.