Righthaven hit with class-action counterclaim
17 May 2011
17 May 2011 9:42 a.m.
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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