Twenty-year old diabetic North Carolina hobby blogger Brian Hill, who's being sued by Righthaven LLC for unauthorized use of a Denver Post photo, is practically destitute and can't afford a lawyer. But after reading our item about the case, Fort Collins intellectual property attorney David Kerr offered to take Hill's case on a pro bono basis -- and while he faults Righthaven for its tactics, he also blames the Post for employing such a heavy-handed outfit.
"I'm going to do everything I can to get some answers from the Denver Post -- to say why they're working with this organization," acknowledges Kerr, an attorney with the Santangelo Law Offices. "I'd submit that they're the Post's copyright enforcement arm. They try to contractually separate themselves, but when you come down to it, if the Post really wanted to sue an autistic, chronically ill blogger in North Carolina for one photo, they should put their name on the suit, instead of going through Righthaven and playing contractual games."
How's Righthaven's approach work? The Nevada-based company purchases the copyright for items from firms such as MediaNews Group, the Post's owner, then files complaints against websites and bloggers like Hill, typically demanding cash payments and rights to domain names in order to squash the suits. The targets thus far include a small South Carolina website that allegedly republished a Mike Rosen column and Internet giant Matt Drudge, who reportedly settled with Righthaven earlier this month for using the same pic -- of a TSA pat-down -- that Hill had published on his site, www.uswgo.com.
Righthaven's plate is plenty full even with the Drudge matter resolved. According to BigMedia.org's Jason Salzman, the company had filed thirty suits in Colorado federal court by mid-month. This fact has yet to appear in the Denver Post, whose editor, Greg Moore, told Salzman, "There's nothing to report. They are suing on our behalf those who infringe on our copyright."
Given that Hill didn't get permission before using the Post's photo, grabbed during a Google Image search, many observers would conclude that he violated the newspaper's rights. But the situation isn't so simple, Kerr believes.
"I think that's where people need to understand copyright law," he maintains. "The fair-use provisions of copyright law essentially say, 'I'm allowing you to use someone else's copyright within a narrow set of circumstances -- and copyright does not allow people to put up impenetrable walls around their copyrighted works. They're entitled to certain protections, but under fair-use provisions, people are allowed to use copyrighted works in certain ways, such as parody and commentary. And if we were to take away those fair-use provisions, I think you'd see a chilling of free speech, since a lot of free speech is based on copyrighted works. And if someone like Brian can't put a picture on his blog because he wants to comment on political things, he's essentially given up part of his First Amendment speech rights to comment on the world around him.
"To a certain extent, it doesn't have anything to do with Brian being autistic or chronically ill. Our contention is that he didn't do anything wrong -- that it was completely fair use," Kerr continues, adding, "In the digital age, copyright laws reflect old thinking. They haven't really caught up with the new technology. We need to try to find a balance -- and I think court cases like this one can help us. They're an opportunity to define what is fair use, how much someone is able to protect copyrighted work, and how much they can ask for infringement damages."
In Hill's case, Kerr says Righthaven demanded $6,000 -- an amount that his client is unable to pay.
"It's just a heartbreaking story," Kerr believes. "Brian is on social security disability, and his mom can't work, either. She literally has to check his blood sugar at night because he could slip into a coma. It's that serious: If he's home alone for too long and can't control his blood sugar, she could come home and he would be dead. He'll never work in his life, and his mom can't really work, either. So there are two people living on social security benefits -- and what put me and my boss over the edge was when they told him they were going to try to take away his government disability."
How so? "Brian wrote a letter to the court saying, 'I'm poor. I have no money. My mom and I live on disability' -- and asked for this to go away. Then, two days later, a Righthaven attorney called him, and Brian threw himself at their mercy. He said, 'I have nothing. Will you please let this go? I just wanted to comment about this TSA photo,' which had taken on a life of its own as a symbol of government power; it was all over the place. The attorney told him, 'We'll make it go away for $6,000' -- and after Brian said something to the effect that 'I don't even have six dollars,' the attorney said, 'If you don't pay, we're going to garnish your social security.'
"They quoted fifty dollars a month until he paid the $6,000, which is insane. I was talking to a friend who's a bankruptcy attorney, and he said, 'You can't do that. You can't take away government disability.' And even if you could, it assumes he's not going to defend the case. They'd have to go to court, default him, and the judge would have to award it -- and the judge could lower the penalty all the way down to $210 even if he was found guilty."
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At this writing, Steve Gamin, the Righthaven attorney assigned to Hill's case, has not responded to a request for an interview. If and when he replies, we'll update this item.
Regarding the case itself, a judge suggested that Righthaven find a way to consolidate the thirty Colorado suits -- but Kerr has sent a letter on Hill's behalf opposing this tack. "Brian has his own facts, his own case, and potentially a counterclaim against Righthaven and the Denver Post and other people," he allows. "We have to investigate that." He feels "Brian is a really good guy, and he doesn't deserve this. But he's a fighter. He's willing to stand up and fight for other people who can't. He just needed someone to be his voice -- and to a certain extent, that's what we want to be."
In the meantime, Kerr insists that "I don't want to sound like I'm hellbent for leather to go after the Denver Post. But without papers like the Post, I don't know that Righthaven exists. The Denver Post is the beneficiary of this, and if they feel the best way to protect their interest is to sue a chronically ill, autistic person, I think subscribers and advertisers might be interested in knowing that."