EFF Files Counterclaim on Behalf of Site that "Benefits the Public Interest"

Free Speech Group Files Counterclaim Against Copyright Enforcement Firm

Friday’s counterclaim was filed by EFF attorneys on behalf of Righthaven defendant Thomas DiBiase, a former federal prosecutor who has a website covering “no-body” murder cases — cases that are investigated and prosecuted in which the victim’s body hasn’t been recovered.
--snip--
“Mr. DiBiase publishes the No Body Website for the purpose of assisting prosecutors and homicide investigators in bringing justice to the friends and families of ‘no body’ murder victims,” Friday’s court filing said.
“Assisting prosecutors and homicide investigators in bringing justice to the friends and families of ‘no body’ murder victims benefits the public interest,” the filing said.

See: Article in full | View: Counterclaim, Motion to Dismiss, (EFF) Righthaven v. DiBiase

Attorneys representing DiBiase in these filings are Kurt Opsahl and Corynne McSherry of the EFF; Colleen Bal and Bart Volkmer of Wilson Sonsini Goodrich & Rosati (Palo Alto); and attorney Chad Bowers (Las Vegas).

Related articles:
09/28/10: Defense: Democratic Underground Fights Back with Help from EFF

Defense: Field & Stream Fires Back (Kudos to Field & Stream!)

Sharron Angle Signals Interest in Settling Copyright Lawsuit
Attorneys for Field & Stream (Bonnier Corporation):

• "The plaintiff's purported assignor (Review-Journal owner Stephens Media LLC) granted an implied license to copy and share the work (story) by posting the work on its website and by providing tools for electronically sharing the work."
• "The posting of the work by Clay Cooper was fair use. The work was attributed to the author and publisher."
• "The plaintiff's claim is barred by its unclean hands, in that the plaintiff is engaged in barratry."
• "The plaintiff's claim is barred by its unclean hands, because the alleged infringement, if any, resulted from the plaintiff's purported assignor's use and promotion of electronic tools for copying and sharing the work."
• "The plaintiff's claim is barred by copyright misuse."

See: Article in full

Bonnier is represented by Michael Crosbie of Shutts & Bowen LLP and Byrne of Snell & Wilmer.

Defense: Democratic Underground Fights Back with Help from EFF

Political Forum Fights Back Against Righthaven Copyright Troll Suit

Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Winston & Strawn LLP, and attorney Chad Bowers -- was sued by Righthaven on August 10 for a five-sentence excerpt of a Las Vegas Review-Journal news story that a user posted on the forum, with a link back to the Review-Journal website. Righthaven has brought over 130 lawsuits in Nevada federal court claiming copyright infringement, even though they do not create, produce or distribute any content. Instead, they create lawsuits by scouring the Internet for content from Review-Journal stories posted on blogs and online forums, acquiring the copyright to that particular story from Stephens Media LLC (the Review-Journal's publisher), and then suing the poster for infringement.

See: Article in full | Read: Counterclaim    (Related: Las Vegas Sun article)

Related EFF articles:
09/28/10: A Field Guide to Copyright Trolls
09/02/10: Righthaven's Brand of Copyright Trolling
08/25/10: EFF Seeks to Help Righthaven Defendants

Defense: 'Rights of Reversion' and Champerty Explained

Attorneys Attack Review-Journal Copyright Suit Arrangement

"All of the rights Stephens Media assigns to Righthaven are 'subject to the assignor’s rights of reversion,' which are not specified anywhere in the assignment. This raises serious questions about what rights Righthaven actually has to sue (the Vote for the Worst) defendants and those similarly situated, as it could be paying Stephens Media for the bare right to sue for copyright infringement, with those rights reverting back to Stephens Media once Righthaven has recovered a settlement or judgment from the affected defendants. In fact, the wording of the purported transfer seems to indicate that the sole purpose of assigning the copyrights is to give Righthaven technical legal standing to pursue infringements on rights that, in all actuality, still belong to Stephens Media. Such arrangements are prohibited as champertous under Nevada law," the attorneys [Lewis and Roca] wrote.

See: Article in full

Defense: Limitations on Exclusive Rights and the Doctrine of Exhaustion

Lawyers Argue R-J Stories on Web Aren’t Protected by Copyright

But perhaps their most interesting defense is that Righthaven’s claims are barred under Section 109 of the copyright law covering “limitations on exclusive rights: effect of transfer of particular copy;” and “the doctrine of exhaustion.”
Borghese explained the theory is based on the fact that the source of the stories at issue in the lawsuits is a publicly available web page.
When a user visits a web page, the user’s browser downloads a copy of that web page. “Thus, the Review-Journal has explicitly or implicitly authorized its website users to make a copy of the article,” Borghese said.

See: Article in full

User SamB007 comments: Well it's about time that someone goes to court with this, once they post to story on the net it's worthless, they didn't sell it to anybody at that point and if they were afraid of the copy-rights on it the never should have given it away to start with! All news papers die in 10 hours after someone buys them, they become trash, or in my house a liner for the birds we have, so we don't have to deal with their droppings! Nice way of putting it!

U.S. Supreme Court May Weigh In On "Innocent Infringer" Defense

Who's An 'Innocent Infringer' Of Copyright? Supreme Court May Decide
MediaPost Publications reports that the U.S. Supreme Court has shown interest in deciding when people accused of online copyright infringement can claim they are "innocent infringers" and only subject to small fines, such as $200. The case involves Whitney Harper, who shared 37 songs on a file-sharing network when she was in high school.

Consider the copyright troll Righthaven -- a start-up that has filed more than 100 lawsuits against Web users ranging from Senate candidate Sharron Angle to reform groups to an unemployed woman who blogs about cats. It costs Righthaven $350 to file a lawsuit, so if an innocent infringer defense is available to defendants in those cases, even a victory by Righthaven could cost the company money.

See: Article in full

Related articles:
09/22/10: Supreme Court Apparently Interested In 'Innocent Infringer' RIAA Case
08/20/10: Supreme Court Petitioned to Hear “Innocent Infringer” Case

Defense: 'Implied License' May Have Merit

Righthaven Judge: Review-Journal ‘Implied License’ Defense May have Merit

But perhaps of more importance, Navarro sided with Lewis and Roca attorneys Michael McCue and Nikkya Williams, who argued one reason for setting aside the default was that Klerks may have meritorious defenses to the copyright infringement allegations of Righthaven...
--snip--
Navarro in her ruling wrote: "The defendant has reasonably asserted that the plaintiff’s conduct may have constituted an implied license and that the defendant may have properly inferred that the (copyright) owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the Internet."

See: Article in full

Related article:
09/20/10: Judge Says Blogger Sued By Righthaven Might Have Fair-Use Defense

Defense: Estoppel, Acquiescence, Copyright Misuse, Unclean Hands, Barratry, Champerty

Defendant Accuses Righthaven of Misusing Legal System
As reported by Steve Green of the Las Vegas Sun on Sunday, a corporation being sued by Righthaven "came out swinging." The case involves California-based Internet Brands Inc. with just over 37 million cash on hand and the ownership of about 100 website brands. In answering to the suit, Internet Brands said Righthaven's claims are "barred based on the doctrine of fair use and that an 'implied license' was provided by the Review-Journal for the use of its material." Internet Brands also said Righthaven's claims are barred based on the following legal arguments:

[Please read the Las Vegas Sun article in full to better understand the below legal arguments, which I've pulled from legal definition websites.]

• Estoppel: (dictionarylaw.com) "A bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act or judgment against the person in..."
• Acquiescence: (wikipedia) "A legal term used to describe an act of a person in knowingly standing by without raising any objection to infringement of his rights, when someone else is unknowingly and honestly putting in his resources under the impression that the said rights actually belong to him..."
• Copyright Misuse: (encyclopedia.thefreedictionary.com) "An equitable defense against copyright infringement in the United States based on the unreasonable conduct of the copyright owner. The doctrine forbids the copyright owner from attempting to secure an exclusive right or limited..."
• Unclean Hands: (dictionary.law.com) "A legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff..."
• Barratry: (dictionary.law.com) "Creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sees fees in the matter. Barratry is illegal in all states and subject to criminal punishment and/or discipline by the state bar, but there must be a showing that..."
• Champerty: (dictionary.law.com) "An agreement between the party suing in a lawsuit (plaintiff) and another person, usually an attorney, who agrees to finance and carry the lawsuit in return for a percentage of the recovery (money won and paid). In common law this was illegal on the theory..."
  

The EFF Seeks to Help Defendants

EFF Seeks to Help Righthaven Defendants

The Electronic Frontier Foundation is seeking to assist defendants in the Righthaven copyright troll lawsuits. Righthaven, founded in March of 2010, files hundreds of copyright infringement lawsuits on behalf of newspaper publishers against bloggers who make use of news content without permission.
--snip--
If you are the target for a Righthaven lawsuit in need of representation, please contact Eva Galperin at eva@eff.org. Please understand that we have a relatively small number of very hard-working attorneys, so we do not have the resources to defend everyone who asks, no matter how deserving.

Learn more: Consumer Group Offers Help to Defendants Over R-J Copyright Suits

Defense: Entrapment

R-J Accused of Entrapment Over Copyright Enforcement
The Las Vegas Sun newspaper reports that Ryan Burrage, a Defendant in one of Righthaven's many "shake down" copyright infringement lawsuits, filed papers last week claiming the following:

• "At no time was it the intent of the defendant to defraud, cause harm, misrepresent, intercept website traffic, profit or exploit the Las Vegas Review-Journal..."
• "Use of the article fell under the 'fair use' clause of copyright law."
• "Contrary to the plaintiff's claim (of harm), linking back to the original source is a form of promotion for the original source which improves, not harms..."
• The alleged infringement is "the equivalent of a passer-by stopping in front of a newsstand and reading the front page of the newspaper, without actually buying..."
• "Even if a defendant was to republish an article from the LVRJ.com website directly, he is not only within his rights to do so, but all users of LVRJ.com are encouraged to..."
• "This lawsuit is entirely predatory, frivolous and an abuse of the United States..."
• "Plaintiff is engaged in a shakedown or extortion operation, with the express purpose of abusing the legal system to extort or shake down webmasters..."

Burrage offered to settle the dispute for $10.87, his Google Adsense revenue during the nine-day period he says Righthaven may be able to assert its claim of infringement for.

Defense: The Doctrine of Unclean Hands

Settlement is Reached in Two Cases
The Las Vegas Sun reports today that at least two victims of Righthaven LLC copyright lawsuits have filed responses asking the court to dismiss the lawsuits. Both victims cite the "the doctrine of unclean hands" as well.

Salzano also complained about Righthaven's legal tactics.
"Plaintiff brings these claims with unclean hands, which mandates dismissal of this action," Salzano wrote in court papers.
"The actions of plaintiff Righthaven in pursuing the instant action for copyright infringement smack of barratry," he wrote.
"Barratry" is defined by one dictionary as "the persistent incitement of litigation."

Attorney Sergio Salzano is representing Las Vegas real estate agent Michael J. Nelson.