Las Vegas Sun

October 23, 2019

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More copyright lawsuits filed over Review-Journal ‘death ray’ graphic

Las Vegas copyright enforcement company Righthaven LLC, as expected, continues to crank out copyright infringement lawsuits over the Las Vegas Review-Journal’s Vdara “death ray” graphic.

The latest website operators and contributors sued this week in U.S. District Court for Nevada, accused of posting the graphic online without authorization, were:

• Eric Lipman, identified by Righthaven as a guest blogger for the website

• An entity called Justmeans, along with Martin Smith and Andrea Brennen, allegedly associated with the website

• Peter May-Ostendorp, allegedly associated with the website

• Kathleen Peddle, alleged owner of the website domain name

Also sued this week by Righthaven was D. Scott Davis Jr., allegedly associated with the website, where Righthaven claims Review-Journal stories or columns called “Vegas Gets Its Dew” and “A hate list of directors who act” were posted without authorization.

Messages for comment were left with all the new defendants. Righthaven since March has now sued at least 192 website operators over Review-Journal and Denver Post material, including 14 over the death ray illustration.

Like all of Righthaven’s recent lawsuits, the company demands in each of the new suits $150,000 in damages and forfeiture of the defendants’ website domain names.

Mark Pilkington with the British website, which was earlier sued by Righthaven over the death ray graphic, told the Las Vegas Sun that an inquiry from the Sun was the first he had heard of the lawsuit.

That reaction is typical as critics say Righthaven doesn’t contact website operators about alleged infringements before suing them. Righthaven, however, has pointed out in its lawsuits that the infringing website operators also didn’t bother to make a call or send an e-mail to the Review-Journal or the Denver Post before using material from those newspapers.

“This strikes me as a predatory and opportunistic attempt to exploit the natural sharing of information on the Internet,” Pilkington told the Sun. “The ‘death ray’ image on the Strange Attractor site is clearly labeled and the story links straight back to the Las Vegas Review-Journal. If anyone is benefiting from this, it’s them, not us.”

Righthaven watchers, in the meantime, are waiting for key decisions in some of the hotly-litigated lawsuits so they can get a sense of how federal judges handling the cases view Righthaven’s copyright enforcement campaign. Motions for dismissal and counterclaims are pending in three cases including those involving the Democratic Underground and Thomas DiBiase; and Righthaven has been ordered to show cause why its lawsuit against the Center for Intercultural Organizing should not be dismissed on fair-use grounds.

Motions for dismissal are also pending in several contested Righthaven cases, including those against Utah company Vote for the Worst and the New Hampshire-based website and a man who runs the site, Christopher J. Malley.

Malley’s site, which focuses on the paramedic and emergency medical technician industry, allegedly displayed without authorization a February Review-Journal story involving the North Las Vegas Fire Department seeking to acquire ambulance duties.

Malley was sued in June and his attorneys on Dec. 8 renewed their motion for dismissal of Righthaven’s lawsuit.

They said that while Righthaven during an Oct. 20 hearing asked for time to conduct discovery on the issue of jurisdiction and was granted until Dec. 4 to do so, “Righthaven did not conduct any jurisdictional discovery at all. It did not serve any written discovery, did not serve any subpoenas and did not notice any depositions.”

“This highlights the fact that this case has never been about enforcing copyrights. It has and continues to be (like all of the other Righthaven lawsuits pending in this court) nothing more than a bad faith attempt to shake Mr. Malley down for a settlement,” said the filing by attorneys with the Las Vegas office of the law firm Lewis and Roca LLP. “Mr. Malley is a working man who cannot afford to be shaken down and who cannot afford to litigate this case indefinitely.”

Represented by Lewis and Roca attorneys Michael McCue, Jonathan Fountain and Nikkya Williams, Malley has argued the lawsuit is frivolous because it involves a post not by him but by a third party from Texas.

Righthaven, however, has repeatedly argued that website operators are responsible for unauthorized news postings by message board users and others on their sites. Righthaven hasn’t yet responded to the latest Lewis and Roca filing in the EMTCity case.

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