courts:

Righthaven hit with class-action counterclaim

One of the website operators accused of copyright infringement by Righthaven LLC has retaliated, hitting the Las Vegas company with a class-action counterclaim seeking to represent defendants in all 57 Righthaven cases in Colorado.

While the counterclaim mentions all 275 Righthaven lawsuits, it covers only those filed in Colorado.

It charges defendants in all the Righthaven lawsuits "are victims of extortion litigation by Righthaven, which has made such extortion litigation a part of its, if not its entire, business model."

"As a result of Righthaven’s unlawful actions, class plaintiffs and members of the proposed class were forced either to fight needless litigation or to pay Righthaven a settlement fee, which they would not have had to pay, had Righthaven engaged in legitimate business practices," charges the counterclaim, which specifically accuses Righthaven of violating Colorado’s law against unfair and deceptive trade practices.

The counterclaim says Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that’s not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, among other things.

The claim seeks an adjudication that Righthaven’s copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law, an injunction permanently enjoining Righthaven from continuing the alleged unfair and deceptive trade practices, an unspecified financial award to the class-action plaintiffs for damages as well as their costs and attorney’s fees.

BuzzFeed is represented by attorneys with the Denver office of the law firm Brownstein Hyatt Farber Schreck LLP. That firm also has a busy Las Vegas office and is usually known for corporate, bankruptcy, casino industry and natural resources legal work and litigation.

Righthaven is the copyright enforcer for the Las Vegas Review-Journal and the Denver Post. It has filed 274 suits against websites, bloggers and message-board posters over material from those newspapers since March 2010. The 275th suit was filed over sports betting material that didn’t involve either newspaper.

The counterclaim is at least the eighth filed against Righthaven. The copyright enforcement company has already lost two Nevada cases on fair use rulings and faces challenges to its standing to sue over Review-Journal material, with a federal judge in Las Vegas saying it appears Righthaven does not have that right.

BuzzFeed separately denied the copyright infringement allegations against it, saying they are barred by Righthaven's lack of standing to sue as the Denver Post is the real party in interest, lack of jurisdiction of the Colorado court over New York-based BuzzFeed, fair use, the First Amendment, copyright misuse, implied license and other things.

The implied license defense says the suit over a Denver Post TSA pat-down photo is barred because the Denver Post granted a license to BuzzFeed and others to use the photo through "links and features encouraging the sharing of the work via: (1) emailing the story; (2) recommending the article on Facebook; (3) using the `Bookmark & Share' feature to share the article on more than 330 websites and social media outlets; and (4) linking the article on Twitter.''

In its March 30 lawsuit against BuzzFeed, Righthaven included a court exhibit showing the Denver Post photo was used on multiple occasions on the website along with some sexual commentary about the TSA agent touching the passenger in the photo as the passenger was patted down.

A request for comment on the counterclaim was placed with Righthaven.

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  1. "The counterclaim says Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, among other things."

    The failure to send a takedown notice probably isn't an issue in law, but the other points raised are valid, in my opinion, as each can be challenged in either the copyright code or in the agreement between RH and SM (and presumably News media.) The agreement specifies that RH will use due diligence before suing and it clearly has not in some cases.

    This will be another fun item to watch.

  2. This does not fit into Righthaven's business plan at all. This will get costly and I am sure they did not plan for big defense costs when they started this little business of theirs.

    Willing to bet we see Righthaven close their operation and file BK on it in the next few months to get out of all the counter suits being brought.

    Best laid plans that someone did not think out what all could happen when you tick off the masses.

  3. vegaslee,

    Although I agree that we might see RH file for BK to dodge this if things go bad, the agreement between them and SM specifically states that SM retains the right to choose who to sue and who *not* to sue. That clause might well allow this claim to be applied to SM as well as RH.

    I think SM is going to be dealing with this for a long time even if RH goes away.

  4. Oh, GOODIE!!!

    Righthaven...
    It's what you get when you put a faux Journalist & a unscrupulous, money-hungry Lawyer in the same room.

    "My little friend"...
    That lil' bugger has turned on you, Shermy, and he's about to take a CHUNK outta ya!

  5. If Righthaven has the funds to fight all these lawsuits and continue on it will give credence to my contention that Righthaven is being well funded and is part of something bigger than just protecting a couple of newspapers content.

    It is good to see someone step up and start one of I suspect many class action suits involving this outfit. The class action suits also needs to name Media News Group as a co-defendant in this action also since they are just as culpable as Righthaven.

  6. Wonderful news!

  7. I wonder why the US attorney hasn't stepped in with a RICO charge against RH? It seems to me that their entire business model is a fraud being pulled on the unsuspecting public.

  8. We also must oppose the "IP Protection Act" that is making its way through Congress. This bill might as well be called the Copyright Troll Protection and Proliferation Act". If this bill becomes law the United States along with China will have the dubious distinction of having the most censored Internet on the planet.

  9. Is there a Pulitzer Prize category for "lawsuit abuse."

  10. Ken, Starting with H.R. 2391 aka IP Protection Act in 2004 and every bill since then has either died or been found unconstitutional when challenged in court.

    You also had the Intellectual Property Protection act of 2006 and the Digital Millennium Copyright Act. Parts of each one of them if not completely been overturned in court challenges.

    Those bills would not and will not censor the Internet yet will hold people responsible for their actions if they can ever get one to hold up in court.

    Should the government have to get involved in the Internet? NO, should people follow common sense and laws? Yes. Seems when one does not do their part the other will do what they can to make life harder then it needs to be.

    Some people like to read more into things then what is really there.

  11. 85,000 innocent sites have already been shut down by Homeland Security Ice. This bill would give the government sweeping authority to shut down sites that they merely suspect infringements. It will also give Righthaven a legal basis for shutting down websites. This bill also would put undue burdens on ISPs which many will simply not have the capacity to police all their users. This is a bad bill and will not protect IP but give government more power over us.