Tuesday, February 8, 2011

David Duke Hit With Copyright Infringement Suit By Righthaven LLC On Behalf Of Denver Post, Also Owned By Salt Lake Tribune Publisher Dean Singleton

White civil rights activist Dr. David Duke has been hit with a copyright infringement lawsuit by professional serial litigator Righthaven LLC. No preliminary Digital Millennium Copyright Act (DMCA) takedown notice was filed with Dr. Duke's host. As of this post, there has been no published reaction by Dr. Duke, although a discussion thread has been opened up on Stormfront, which Duke extensively patronizes. Primary media story published by the Las Vegas Sun.

Summary: On February 4th, 2011, Righthaven LLC filed suit in U.S. District Court in Denver, Colorado on behalf of the Denver Post, naming Dr. David Duke and the European-American Unity & Rights Rights Organization (EURO) as defendants, accusing them of copyright infringement. Righthaven is asking for $150,000 and forfeiture of the WhiteCivilRights.com domain name. Righthaven claims that Dr. Duke allowed the publication of a November 18th, 2010 photo copyrighted by the Denver Post on a November 24th, 2010 post on WhiteCivilRights.com entitled "TSA Abuses: Is Flying A Right Or A Privilege"; both the post and the photo are still online. According to White Reference, the photo shows a picture of a TSA officer grabbing a man's crotch with his right hand and holding the man's belt with his left hand. There is no copyright jurat on the photo.

However, a Google Image search of the term "TSA" (without the quotes) indicates the picture is available from multiple sources, so Righthaven will have to prove that WhiteCivilRights specifically used the Denver Post version.

But Dr. Duke is just the latest in a long line of victims targeted by Righthaven. The list, posted on RighthavenVictims, constitutes nearly the entire spectrum of political thought, including Democratic Underground, ALIPAC, Pajamas Media, and Drudge. Prominent and obscure websites alike are targeted; it is irrelevant to Righthaven whether or not their targets are profit or nonprofit.

Background: An August 24th, 2010 Las Vegas Sun story gives more details on Righthaven's history and motives. In March 2010, Righthaven LLC was formed by Steven Gibson, who immediately partnered with the Las Vegas Review-Journal to cut down on other websites indiscriminately copying their stories, many without attribution (obviously, they're now also partnering with the Denver Post, too). Specifically, Righthaven searches R-J stories to find "infringements" of their copyright, buys the copyright for that story from R-J, then sues the infringer — all the while continuing to troll for additional violations. Buying the copyright allows Righthaven to seek statutory damages (some defendants argue that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement).

The particularly troublesome aspect of this operation is that a webmaster can suddenly be blindsided by litigation even if he or she is making a good faith effort to comply with Fair Use practices. Steven Gibson has found a loophole in DMCA which permits him to bypass DMCA takedown notice provisions and go straight for litigation. For a website to claim the "safe harbor" coverage which would mandate that a copyright complainant first send a takedown notice, website owners must designate a contact and register their contact information with the U.S. Copyright Office. Gibson's targets have been websites which have not registered -- and thus do not qualify under the safe harbor provision. Righthaven normally seeks quick settlements of anywhere from $3,000-$5,000, much like RIAA used to do to people who downloaded unauthorized music. This means that if Dr. Duke chooses to settle, he might pay no more than $3,000.

The Utah Connection: There are actually two Utah connections to this story.

(1). Dean Singleton: OneUtah.org reports that the Denver Post is part of News Media Group, owned by Dean Singleton. Singleton is also the publisher of the Salt Lake Tribune. Consequently, there is concern that Singleton may retain Righthaven to perform the same trolling and harvesting function on behalf of the Tribune in the future. On January 12th, 2011, without any obvious provocation, the Salt Lake Tribune suddenly published a story reminding readers that their content is protected by copyright law. While the information is useful, it is now appropriate to wonder whether or not this was an oblique warning that the Tribune was preparing to retain the services of Righthaven. The Tribune does recognize the principle of Fair Use. The Salt Lake City Weekly has also addressed this issue recently.

(2). The DMCA and Orrin Hatch: Utah U.S. Senator Orrin Hatch was one of the two Senate co-sponsors of the DMCA. Hatch is up for re-election in 2012. To punish him for this law, he must incur the same fate as Chris Cannon and Bob Bennett, despite Hatch's belated attempts to re-invent himself as a "conservative". Thirty-six years in the Senate is more than enough.

Ironically, on the same day that David Duke became a DMCA issue, Crunchgear reports that additional copyright reform may be in the works. The 2010 U.S. Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property [PDF here], written at the behest of President Obama, proscribes a number of measures to be taken in order to update American laws vis-à-vis copyright and intellectual property. But Crunchgear believes it will actually result in more stringent enforcement.

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