Righthaven Going After the Use of Thumbnails?

UPDATE 03/27/11: It has come to my attention that Mixx.com is also being sued by Righthaven for using a thumbnail from someone who posted the deadseriousnews.com story on Mixx.com. What is interesting is that Mixx.com is one of the 335 social bookmarking sites that the Denver Post invites people to share the TSA image.

Mixx.com was recently acquired by UberMedia. Righthaven may have thought they were going after a relatively little fish when they went after mixx but now they may have to contend with a big fish who swallowed up the little fish. This is getting very interesting. Righthaven may have really stepped in it this time.

See: Court papers for Mixx.com

The fact that Righthaven is suing Mixx.com and DailyKix.com for thumbnails suggests that Righthaven is gunning for these types of sites.

03/26/11
Righthaven has filed suit against DailyKix.com which is a social media aggregating site that simply indexes stories that have been posted to Mixx.com and other sites. The thumbnail images are not hosted on any DailyKix servers but merely accesses it from Mixx.com. The only thing that is displayed on DailyKix is a tiny thumbnail and a headline that links to the source.

Many social networking sites including Facebook, Digg, Mixx, Reddit etc use a thumbnail size image when a news report is posted to a wall. The 9th Circuit Court of Appeals, in a case against Google and Amazon, ruled that the use of thumbnail images are not an infringement. This court precedent is what protects Facebook and others, including their users, from being sued when a thumbnail is attached with a wall posting. Infact often times the social networking sites automatically search the page for images and places one on the wall unless the user specifically chooses no thumbnail which is not the default.

This is a pdf of Righthaven's court exhibit filed with the Federal District Court of Colorado. (This pdf is public record so it is not subject to copyright.)

Righthaven must either be counting on DailyKix not knowing about the 9th Circuit precedent and counting on DailyKix to settle or they are using DailyKix as a test case to challenge the 9th Circuit Court's decision. If this is the case it would have far reaching impact on all social networking sites. Then again they may have just screwed up again and they are simply incompetent and don't know what they are doing.

[6] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy. 17 U.S.C. § 101.

In other words Google, and for that matter DailyKix, does not hold a copy of any images on their servers but simply contain code that queries the sources server which sends the information to the user's browser. The 9th Circuit Court held that simply having code that may fetch a copyrighted image is not enough to be considered an infringement. If that was the case the entire Internet would be illegal.

The court also ruled that Google's use of copyright images and thumbnails are transformative and only serve the purpose of assisting users in accessing information.

Google’s use of thumbnails is highly transformative. In Kelly, we concluded that Arriba’s use of thumbnails was transformative because “Arriba’s use of the images serve[d] a different function than Kelly’s use—improving access to information on the [I]nternet

This would also apply to DailyKix which provides a service similar to a search engine that directs users to the original source. Infact a reading of this ruling DailyKix could have very well been the subject rather than Google.

Is Righthaven prepared to take on giants like Facebook and Google and try and overturn an established precedent? Is this simply a case where Righthaven knows they have no case but are counting on a quick settlement? It will be interesting to see how this case winds through the courts. Facebook, Google and others would be wise to keep an eye on this case because it directly effects them.

Righthaven is showing a pattern of doing little if any research on the subjects of their lawsuites before filing. They seem to do nothing more than a Google search, print a screenshot, do a Whois search and sue whomever's name comes up without any research or investigation.

For a company that claims to be a "technology company", they don't seem to know much about technology. The result of this has been some very high profile screw-ups.

• Righthaven has sued the very source of a story that was published on the Las Vegas Review Journal.
• They have twice sued the wrong people.
• They have sued the Toronto Star that is an AP affiliate that more than likely had permission from the Denver Post.
• They have managed to actually dilute the copyright protections they claim to "enforce". It has been ruled fair use that an entire article can be copied in some situations thanks to Righthaven.
• They have yet to win a single case in court apart from some default judgments where the defendant simply never showed up. They have yet to earn a single penny based on the merits of a case but only from strong-arming and intimidating their victims into settling.
• They can't find two of their defendants and since they could not be served with a court summons the cases were thrown out.
• They had the unmitigated gall to complain to a federal judge that the defendant's attorneys in the EFF (Electronic Frontier Foundation) were engaged in "litigation overkill" and that their actions were running up legal fees.
• They asked a South Carolina Lawyer to send them advance notice if and when the lawyer files a counter-suit. The SC Lawyer smacked them down by telling them he would give them the same courtesy that Righthaven gave his client when they refused to send a take-down letter before proceeding with a lawsuit.
• Their lawsuits claim they have suffered "irreparable damages" but have yet to identify exactly what these "damages" are.
• They have yet to be awarded a single web-site domain name even though they use this to coerce people into settling and has no basis in copyright law.
• They have sued Brian Hill who they cannot collect from even if they win. (which they won't)
• They have by far the worst website on the planet that consists only of a single large jpeg image that takes up the entire screen. Apparently this "technology company" has no one who knows how to set up a website.

They are the gang that can't shoot straight. They are an embarrassment to Stephens Media and News Media Group who embarrass themselves by associating with them. They are an embarrassment to the legal profession and above all they are an embarrassment to the human race.