Copyright Lawsuits Filed Over Pat-down Photo

DENVER (AP) - A law firm that targets the unauthorized use of news content on the Internet has filed 32 lawsuits in federal court in Colorado seeking to stop the use of a Denver Post photograph showing an airport pat-down.

The lawsuits are being closely watched by news companies struggling to protect content as more people rely on the Web for news, and traditional ad revenue in printed newspapers dwindles.

The lawsuits filed by Las Vegas-based Righthaven LLC claim various websites have used the photo of a Transportation Security Administration agent and passenger without authorization. The defendants live in several states and include former Ku Klux Klan leader David Duke.

Righthaven acquires copyrights to online content from MediaNews Group Inc., parent company of The Denver Post, then files suits over alleged violations of copyright law. With dozens of other publications, MediaNews is the nation's second-largest newspaper publisher.

Righthaven has been criticized by some for suing first, rather than asking bloggers or operators of websites to remove copyrighted content.

CEO Steve Gibson defended the strategy Tuesday, saying many people wrongfully assume that if something is posted on the Internet, it's in the public domain and can be used for free.

"I think over the past 15 years, it has been made fairly clear that you're not going to get a reduction in the level of infringements and the respect of the infringement community just by asking them to take it down." Gibson said.

Righthaven has also acquired copyrights from Stephens Media LLC, owner of the Las Vegas Review-Journal. Since March, the law firm has filed more than 230 lawsuits in Nevada against bloggers, nonprofits and other web posters.

One involved Matt Drudge, operator of the Drudge Report, and accused the website of using the pat-down photo. Drudge did not return a message sent through his website.

Gibson said many of the firm's lawsuits have been settled before going to trial. Righthaven could be able to collect up to $150,000 per infringement, he said. The Review-Journal has reported that settlements averaged about $5,000.

The Post published its TSA photograph on Nov. 18, and it was distributed to media outlets by The Associated Press. The picture was widely used to illustrate the debate surrounding increased security measures at airports.

In a notice to readers published Nov. 14, the Post said it would use all legal remedies to address copyright infringement. MediaNews did not return messages seeking comment about the lawsuits.

One of those sued by Righthaven is Brian Hill, 20, of Mayodan, N.C. Hill said he found the Post picture on Google Images and posted it on his news and politics website, not knowing it was copyrighted.

Hill said an attorney from Righthaven called him Feb. 10 and said he could be liable for up to $150,000 in damages but could settle a lawsuit filed in Denver on Jan. 27 for $6,000.

Hill, who said he receives Social Security disability payments, said he cannot afford that amount and noted he had taken down the photo from his website. The suit is pending, and he'd like to represent himself in court in Denver.

"I was scared and fearful, and then I decided to speak out on the matter," Hill said. "We told them that we couldn't afford it, and we were going to continue our court case."

A message left for Duke through his website was not returned. The pat-down picture is no longer posted.

In Las Vegas, lawsuits have been filed over various Review-Journal content, including a graphic showing how the mirrors at the Vdara Hotel at CityCenter focused sunlight at the hotel's pool in a phenomenon that one tourist claimed singed his hair, according to Jason Schultz, co-director of the University of California, Berkeley, Samuelson Law, Technology & Public Policy Clinic.

Corynne McSherry, intellectual property director at the San Francisco-based Electronic Frontier Foundation, said having most cases settled outside court leaves the legal issues surrounding the suits unsettled.

Those issues include whether newspapers are being harmed by unauthorized posts outside their markets, and what constitutes fair use - a part of copyright law that allows original content to be used by others, in part for educational purposes.

At least one judge raised that issue during a contentious hearing in December involving Portland, Ore.-based nonprofit immigrant rights group Center for Intercultural Organizing. That case has been heavily argued, with Righthaven claiming nonprofits aren't exempt from the law.

"This fair use popped out at us and it just seemed like an overriding issue . that needs to be addressed early on," Nevada U.S. District Court Judge James C. Mahan said. "I assume (these cases) get settled and the fair use doctrine never gets raised probably, and it's something I think needs to be addressed."

A hearing in that case is scheduled Feb. 22 in Las Vegas.

Added McSherry: "Once we get some real legal scrutiny in these cases, they're going to start to fall apart."

Another Nevada federal judge in October dismissed a lawsuit over a real estate agent's use of a Review-Journal article under the fair use' exemption, ruling that using eight sentences out of a 30 sentence article constituted fair use. That ruling is being appealed.