With a judge in Colorado already critical of Righthaven LLC, the Las Vegas copyright enforcement company faces more work there in the form of dismissal motions in two more cases.
While many of its defendants settle, some are fighting back on fair use, jurisdictional and other grounds.
The latest motions for dismissal of Righthaven copyright infringement lawsuits over a Denver Post TSA pat-down photo were filed by attorneys for:
• Matzoball Entertainment Online LLC and Michael Airington of Los Angeles, who have an Ester Goldberg gossip website called estergoldberg.com.
• William Sumner, a Georgia resident who has a website called DailyKix.com.
The motion for dismissal filed on behalf of Sumner argued Righthaven’s “serial filings are part of its concocted business scheme of using copyright law and the federal judicial system to attempt to coerce settlements from unwitting alleged infringers of Internet content in which the plaintiff purportedly owns copyrights.”
Righthaven, however, says it’s no-warning lawsuits are necessary to crack down on widespread online infringements of newspaper stories, editorials, columns, photos and graphics.
Sumner’s motion said he operates DailyKix.com as a social media aggregating website as a hobby and that the Colorado court lacks jurisdiction over him, as Sumner does not generate or select the content or material that Internet viewers see on his website.
That’s because the website displays titles, brief excerpts, and vote counts for popular stories at other social media news sites. The site only has links to content residing elsewhere, the filing said.
“DailyKix.com could never and does not ever intentionally infringe on any alleged copyright material,” the filing said, adding the photo at issue in the lawsuit “unwittingly appears on DailyKix.com.”
Sumner’s motion said that after the photo appeared in the Denver Post, it showed up on the deadseriousnews.com parody website — the apparent source of numerous alleged infringements cited by Righthaven in its TSA photo lawsuits.
It’s unclear how deadseriousnews.com first spotted the photo, because The Associated Press distributed the image widely to news outlets after obtaining the image from the Denver Post.
As of Friday, deadseriousnews.com had not been sued by Righthaven.
Dead Serious News, operator of that site, allows users to share articles through other sites including Mixx.com, Sumner’s response said.
“Once the story received enough votes that it reached the ‘travel’ page of Mixx.com, the story’s title, an excerpt of the story, a link to the story at the source website (Mixx.com), a link to the story on Dead Serious News, the story’s vote count and a link to the thumbnail image on the Mixx.com server were automatically imported to the DailyKix.com website,” the response said.
“As with all thumbnail images associated with stories which are viewable on DailyKix.com, the actual image file was never hosted, modified on or copied to the DailyKix.com server,” the filing said.
“This is thus not an instance where Mr. Sumner or DailyKix.com accessed the Denver Post’s website and secured the allegedly infringing photograph,” the filing said, arguing that under these circumstances forcing Sumner to defend the suit in Colorado where he doesn’t live or do business would violate his due process rights under the U.S. Constitution.
“Notably, the words ‘Denver Post’ do not appear on the photograph, and there is nothing in the photograph bearing any connection to Colorado,” Sumner’s attorneys argued. “It thus would have been entirely impossible for anyone, including Mr. Sumner, to know that this photograph has any link whatsoever to Colorado (or that the photograph’s automated appearance on the DailyKix.com website would subject Mr. Sumner to a lawsuit in Colorado). Indeed, the article and thumbnail image at the Dead Serious News website show no indication of a Denver Post or Colorado connection, and the Dead Serious News article refers to an incident in San Francisco,” the filing said.
Sumner is represented by attorneys Andrew J. Contiguglia in Denver; Marc Randazza and J. Malcolm DeVoy of Randazza Legal Group, which has an office in Las Vegas; and Charles H. Van Horn in Atlanta.
Airington’s attorney, in his dismissal motion, said Airington also found the photo on the Dead Serious News site and that he’d never visited the Denver Post website where the photo was initially published.
“The blurb under the TSA photo explicitly states it is depicting an individual at the San Francisco International Airport. The deadseriousnews.com website urges viewers to ‘Use and Enjoy’ the TSA photo and the article,” said the filing for Airington.
“To that end, it provides approximately 23 hyperlinks that enable the viewer to replicate and relay the article in a variety of ways. The deadseriousnews.com website makes no reference to the fact that the TSA photo was allegedly originally published by the Denver Post, nor is there mention that it was allegedly taken in Colorado.
“At the time Airington posted the TSA photo on the website, he believed the TSA photo portrayed images taken in the San Francisco International Airport. Airington put the information about the San Francisco International Airport on the website and also referenced deadseriousnews.com,” the filing said.
“Further, it is highly doubtful that the alleged harm — if any — was felt in Colorado, since plaintiff is a Nevada limited liability company,” said the filing by Los Angeles attorney Joshua G. Blum.
Righthaven has not yet responded to these dismissal motions.
When it does, it will be mindful that the senior federal judge handling all of its Colorado cases, John L. Kane, has issued two anti-Righthaven orders in recent days that observers said were at minimum, unusual, and at maximum, extraordinary.
First Kane denied what is usually a routine motion for extra time for Righthaven to file a brief, in the process criticizing Righthaven’s business model aimed at convincing defendants to settle.
Then Kane struck from the court record a statement by Righthaven critical of opposing attorneys and warning observers not to infringe on its copyrights, with Kane calling this language “immaterial and impertinent.”
In the meantime, despite all the attention to its cases in Colorado, Righthaven is waiting for key rulings in several Nevada copyright cases, including counterclaims against Righthaven and Las Vegas Review-Journal owner Stephens Media LLC.
Another contested case is pending in South Carolina over a Denver Post column, and a counterclaim is pending there, too.