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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Filed Under: copyright, dmca, fair use
Companies: pajamas media, righthave
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Maybe they just don't like that pesky First Amendment.
Either way, they deserve to get a smackdown from a judge for this incompetence.
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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).
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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!
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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.
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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.
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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.
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H ard to feel sorry for that guy.
http://en.wikipedia.org/wiki/David_Duke
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Righthaven Flaunts the law
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Abuse of the law: the courts are not your ATM!
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