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

from the righthaven-way dept

Wed, Dec 22nd 2010 3:33pm — Mike Masnick

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.

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

27 Comments

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Anonymous Coward, 22 Dec 2010 @ 3:48pm

Julian Assange talks about Journalism today
Julian Assange had a 15 minute interview on The Dylan Ratigan Show only a few hours ago, and he puts all other journalists to shame.

http://www.msnbc.msn.com/id/32545640

Don't miss it...
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Doug, 22 Dec 2010 @ 4:02pm

Yes it does seem like this would benefit them
I wonder if the newspaper's server logs could be used to show that the number of hits they received from the sites using the image represent a net gain over the claimed damage.

Sometimes damage amounts in lawsuits are like real estate depreciation. Legal, but not based on fact.
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Anonymous Coward, 22 Dec 2010 @ 4:09pm

Re: Julian Assange talks about Journalism today
Nice. The link changed.

http://www.msnbc.msn.com/id/21134540/vp/40785274#40785274
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Anonymous Coward, 22 Dec 2010 @ 4:29pm

It's the next advancement in solar energy! Construct your buildings to consolidate the sun's rays onto your solar collector. :-P
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Ron Rezendes (profile), 22 Dec 2010 @ 4:49pm

Re:
Actually old news in the solar power field.

Perhaps though - someone should sue the hotel for unlicensed use of Intellectual Property stolen for the solar power folks?! /sarcasm
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ChurchHatesTucker (profile), 22 Dec 2010 @ 5:00pm

Simple solution
If only we could just convince the LVRJ to embrace the benefits of paywalls...
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Mike Masnick (profile), 22 Dec 2010 @ 5:07pm

Re: Re: Julian Assange talks about Journalism today
Please do not use the comments for off-topic comments.
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Ali Khalid (profile), 22 Dec 2010 @ 5:21pm

Re: Re: Re: Julian Assange talks about Journalism today
Hi Mike,
Yes its a little off topic but Its related to some of the topics what this website regularly writes about and IMHO I guess in this one case it should be allowed.
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Ted Barrons, 22 Dec 2010 @ 5:40pm

TOS and UA vesus copyright
I own and operate several Internet online discussion forums and I've been in a recent email exchange with Colleen Lynn (righthavenvictims.blogspot.com), about what would trump what, if a poster to one of my forums were to post some LVRJ content to one of my web forums, my Terms of Service or Righthaven's belief that they can sue everyone in a Nevada district court.
I mentioned to Ms. Lynn that my TOS clearly state that any use of my sites denotes full acceptance of the TOS terms (if you don't agree leave now, etc...) but she quoted a criminal RICO case wherein the court decided using a site didn't submit the parties to any specific jurisdiction.
My response is that, (1) unless I am the poster of the content Righthaven would be suing over, I haven't contributed to the conduct, (2) my TOS terms say nothing about jurisdiction over anyone other than me. The terms state that any legal disputes concerning my sites will be litigated in the forum state of the site owner, meaning the terms define what jurisdiction I will be subject to and (3) after checking (Google, Bing, etc.), I found over 1.2 million individual sites and web pages that use the same verbiage I use in my TOS, sites that include EMI Music Group, Universal Studios, Oracle, IBM, the Minnesota Department of Agriculture, General Motors, Stanford University, and so on and so on.
I quote (Oracle), "By any use of this Website, you agree to be bound by these Policies and Terms of Use..."
"Governing Law. These Terms are governed by the laws of the State of California and applicable U.S. Federal law without regard to choice of law rules or the United Nations Convention on the International Sale of Goods. With respect to any disputes relating to these Terms, You agree to submit to the personal jurisdiction of the U.S. District Court for the Northern District of California, and the state courts of the State of California for the County of Santa Clara."
So what trumps what? Terms of Service or the Righthaven "Nevada only" argument? Any opinion?
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Jose_X, 22 Dec 2010 @ 5:46pm

Re: Re: Re: Julian Assange talks about Journalism today
I hope desperate efforts like those from Righthaven help many more judges re-evaluate copyright fair use, perhaps while entertaining more literature from outside their primary circle.

PS: [Please repost that very interesting and valuable link on the next wikileaks/Assange piece so that more people are likely to come across it.]
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SUNWARD (profile), 22 Dec 2010 @ 5:48pm

I don't see how fair use applies
the image was created by the paper for its use by someone on staff or hired by the paper. Others copied it instead of making their own or paying for it.

Fair use is a big stretch in this case. As much as I hate the tactics of the LVRJ, I would side with the paper this time.
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ChurchHatesTucker (profile), 22 Dec 2010 @ 6:00pm

Re: I don't see how fair use applies
It's really no different than repeating what was written.

This is the problem with copyrights et al. It's ultimately about quashing free speech, since most of what we communicate is what we've heard from others. That's rather the point of communication.
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average_joe (profile), 22 Dec 2010 @ 8:50pm

Re: TOS and UA vesus copyright
First of all, do you have a registered DMCA agent? If not, you should fill out the paperwork with the Copyright Office ASAP. This can save you from being sued by Righthaven in the first place for the actions of your users. If you have a registered agent, Righthaven has to request you remove the infringing content before they can sue you.

Your TOS, if they're enforceable, do not affect third-parties like Righthaven since they never agreed to your TOS. If Righthaven is suing you for your poster's actions, the theory is either contributory infringement (knowledge plus material contribution on your part) or vicarious infringement (financial benefit plus right to supervise on your part). In either case, you are potentially liable for the actions of your users, and the fact that your users are bound by the TOS is irrelevant to whether or not Righthaven is.

The issue of whether or not Righthaven can sue an out-of-state defendant in Nevada would be governed by Nevada's long arm statute. Typically jurisdictional analysis requires a finding of purposeful availment and minimum contacts. The idea is that by you or your users taking actions that have an effect in Nevada, you are opening yourself up to liability in that state.

Hope this helps.
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Anonymous Coward, 22 Dec 2010 @ 10:48pm

I wonder if I used a 3D program to make the same graphic if that would be infringement since that is a fact.

Because if it needs to be different then you only have 360 ways to do it and 180 probably wouldn't be of use LoL
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Anonymous Coward, 22 Dec 2010 @ 10:52pm

That image is a bit inaccurate.

It should have at least 2 rays bouncing off the building and showing their paths converging to path the idea of what it happens.
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misterdoug (profile), 22 Dec 2010 @ 11:57pm

WTF?
Registered DMCA agent?

You're saying that filling out some forms gives you rights that people who don't fill out the forms don't have? I guess I should have known this, living in the United States of Litigation as I do.
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Mike Masnick (profile), 23 Dec 2010 @ 3:50am

Re: WTF?
Registered DMCA agent?

You're saying that filling out some forms gives you rights that people who don't fill out the forms don't have?

That's not anything new. It's not giving you "rights," it's just protecting you via the law's safe harbors by having you comply with the conditions to get those safe harbors.

http://www.techdirt.com/articles/20101028/15533611640/damn-good-reminder-if-you-run-a-bl og-register-for-dmca-protections.shtml
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Anonymous Coward, 23 Dec 2010 @ 5:45am

Re:
It is a pretty crummy graphic. They should be embarrassed about it
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Anonymous Coward, 23 Dec 2010 @ 6:54am

I think that using the graphic isn't fair use, as it by itself is a complete work, similar to a photograph. In using it, you are in fact using 100% of a work. There is no pecentage play here, no thumbnail, no nothing. It's the full image, used to illustrate something.

If the LVRJ ran an image of the hotel, and others just took that same full picture and ran it without permission, it would be a clear case of copyright violation.

Let's be clear here. TD hates Righthaven, and anything they do. All we get is hate. But this is a case where they are clearly right. Why even bring it up? They are right.
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Anonymous Coward, 23 Dec 2010 @ 8:24am

Re:
Using 100% of something can still be fair use.

Now go back to embarrassing yourself.
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abc gum, 23 Dec 2010 @ 8:25am

Re: Re:
Agreed.

1) The "
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abc gum, 23 Dec 2010 @ 8:27am

Re: Re: and again
Agreed.

1) The sunlight looks like some sort of gaseous jet rather than photons.

2) Good depictions of sunlight impinging upon an object much smaller than the sun, show multiple parallel "rays".

3) Text within the graphic states: "The solar reflection covers an approx 10 x 15 ft area which moves as the earth rotates."
---- I hope that 10 x 15 ft area moves as the earth rotates, because that would be a big problem if it didn't.
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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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Anonymous Coward, 23 Dec 2010 @ 10:32am

Re: Re:
your dad can turn into your mom with the right surgery. That doesn't change much though, except that he now has to sit down to pee.

There are very, very few examples you will ever find of commercial use of a full image being fair use.

You can now go back to embarrassing yourself (and your mom.dad hybrid).
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average_joe (profile), 23 Dec 2010 @ 11:34am

Re: I don't agree
You seem to have it all figured out just the way you want it to be. Good luck to you.
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average_joe (profile), 23 Dec 2010 @ 12:04pm

Re: I don't agree
I'll just go ahead and point out the obvious problem in your logic, if not for you then for others. Your liability for the infringement would be created when the user made the infringing post. Your TOS doesn't indemnify you from liability to third-parties who were not bound to your TOS when the liability was incurred, nor could it.

By the way, it cracks me up that you think a Nevada District Court judgment wouldn't be enforceable against you. Best of luck with that. And do you really not have a DMCA agent? Good luck with that too.
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justbite_me (profile), 25 Dec 2010 @ 2:24am

Righthaven
Are Righthaven, ACLU and Southern Poverty Law Center connected by a common umbilical cord? If either one is mentioned in any suit, it usually means Free Speech is not so Free. People fear lawyers more than they do those who are trying to kill them. There are some good lawyers, but those from these three mentioned groups cast dark mud and darkly stain and take away the good that some lawyers do.
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