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July 23, 2014

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Two Righthaven suits dismissed for lack of service, new suit filed

Neither adverse publicity nor unfavorable court rulings are deterring copyright enforcer Righthaven LLC of Las Vegas from filing new lawsuits.

On Monday, it filed at least its 251st lawsuit. Again, this was in Denver over the Denver Post TSA pat-down photo. This lifts to at least 47 the number of suits over that photo.

The latest defendant is Erin Breig, whom Righthaven says owns the website hoodtmz.blogspot.com.

"Ms. Breig reproduced an unauthorized copy of the photograph entitled: 'TSA Agent performs enhanced pat-downs' ... and displayed said unauthorized copy on the website," the lawsuit charges.

As usual, Righthaven in its lawsuit demands $150,000 in damages and forfeiture of Breig's website domain name.

A court exhibit in the lawsuit shows the photo was posted with commentary suggesting a passenger was arrested after becoming sexually aroused during a TSA pat-down.

This commentary appears in several Righthaven lawsuit exhibits and didn't originate with the Denver Post. It appears to have originated with the parody website deadseriousnews.com.

Contacted about the lawsuit, an individual who would identify himself only as "Michael" said "Erin Breig" is a name he made up for the website.

"I was playing Scrabble on my phone and the word 'Breig' came up, so I thought it was interesting," he said.

Michael said he found the photo at issue on the Internet at a site he couldn't recall, but that it wasn't the Denver Post.

Michael said he was unaware Righthaven or the Denver Post had anything to do with the photo or that he needed to obtain permission to post it.

"Just to post a photo I have to get permission?" he asked. "Amazing."

***

Righthaven watchers are chiming in on last week's ruling by a federal judge in Las Vegas to throw out a copyright infringement lawsuit on fair use grounds.

The ruling was noteworthy because it involved the unauthorized re-posting of an entire Las Vegas Review-Journal story.

Commentators including Joe Mullin at paidContent.org noted this could have far-reaching consequences for the newspaper industry if the ruling is upheld.

The judge, James Mahan, raised eyebrows by commenting that the 33-paragraph story at issue was primarily informational as opposed to being creative.

Wendy Davis, writing at Online Media Daily, talked to David Ardia of the Citizen Media Law Project. He said the story at issue was creative in that it was an investigative piece involving multiple document reviews and interviews with multiple sources.

Another frequent commentator on Righthaven, Mike Masnick at techdirt.com, wrote that the ruling "spells trouble for Righthaven, which would lose the entire basis for its legal campaign and business model for the vast majority of its cases."

At the Electronic Frontier Foundation, which participated in the case by providing a friend of the court expert, Senior Staff Attorney Kurt Opsahl commented in a blog post that Mahan's forthcoming written order "will help set a persuasive precedent for other copyright troll cases."

"The copyright troll's business model is to search for blogs and websites that include a newspaper's material, acquire the right to sue on particular articles from the paper and then file a lawsuit without any prior notice to the defendant. Righthaven seeks the maximum damages under the Copyright Act as well as control over the domain name, but is willing to settle for four-figure sums that seem calculated to be less than the cost of defense. Meanwhile, the actual articles that Righthaven sues over remain available for no charge on the newspaper website," Opsahl wrote.

***

In another Righthaven lawsuit over the Denver Post TSA pat-down photo against conservative Fargo, N.D., radio personalities Rob Port and Scott Hennen, Minneapolis attorney John Hinderaker commented on Righthaven in a Forum of Fargo-Moorhead story.

"What these people are trying to do is extort a very modest amount of money from everybody they sue," he said.

Righthaven, however, maintains its lawsuits are necessary to deter widespread online infringements of newspaper material.

***

The company's investments in court costs and legal fees, however, didn't pay off when two suits were dismissed Monday by a federal judge in Las Vegas.

A Righthaven lawsuit against former mob figure Anthony Fiato, who has been a source for Review-Journal columns, was dismissed after Righthaven failed to show Fiato had been served with the suit.

The complaint against Fiato alleged he has a "Hollywood goodfella" blog that focuses on mob activity around the country and displayed without authorization Review-Journal columns and stories about mafia activity in Las Vegas.

U.S. District Judge Gloria Navarro dismissed the case without prejudice, meaning Righthaven can try to revive the suit if it desires.

Another Righthaven suit against Ronald Baxter, Buy Dog Beds and TEB Media was dismissed without prejudice Monday by Navarro for the same reason. That lawsuit involved a Review-Journal story on a slain store clerk that allegedly was posted on the www.buydogbeds.org website.

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