A class-action counterclaim against Las Vegas copyright enforcement company Righthaven LLC attracted plenty of attention Tuesday — along with doubts about its probability of success.
Righthaven is the copyright enforcer for the Las Vegas Review-Journal and the Denver Post that since March 210 has filed 274 lawsuits over alleged online infringements of material from those newspapers.
The counterclaim was filed Monday by attorneys representing Righthaven defendant BuzzFeed Inc., which was sued in federal court in Denver over a Denver Post TSA pat-down photo allegedly posted on the BuzzFeed.com website.
The class-action seeks to recover damages for Righthaven defendants sued in 57 cases in Colorado, charging that with its no-warning lawsuits Righthaven has subjected the defendants to “extortion litigation” over dubious copyright infringement claims.
Righthaven, unsurprisingly, doesn’t agree with those allegations.
“Defendants’ request for class certification based on the asserted claims for relief certainly represents a novel attempt to impose liability based on theories that Righthaven maintains lack both legal and factual support. In fact, the asserted counterclaims clearly represent defendants’ attempt to capitalize on the perceived groundswell of unfounded and pejorative comments directed toward Righthaven and its alleged business model without due consideration of the evidence presented in the company’s defense,” said Shawn Mangano, a Las Vegas attorney representing Righthaven. “Righthaven will vigorously defend these allegations, as it has in all contested actions, and unquestionably expects to prevail once the asserted claims are decided on their merits.”
Eric Goldman, a copyright law expert who has been critical of Righthaven, was doubtful the class-action plaintiffs would win their requested declaration that their use of Denver Post material was allowed under the doctrine of fair use.
“I can’t recall previously seeing a class action lawsuit for a declaration of fair use. That is unlikely to succeed because fair use is so defendant-specific, so the individualized determinations in a fair use case probably outweigh the common issues,” said Goldman, associate professor at the Santa Clara University School of Law in California and director of its High Tech Law Institute.
“Abuse of process claims are very difficult to win, and once again, many of those determinations will be individual defendant-specific,” he said.
Goldman noted, “In the interests of judicial economy, there could be some value to consolidating the cases given the duplicative issues being raised in each lawsuit.”
Goldman has previously questioned whether Righthaven can be profitable given all the defendants that are fighting back in Nevada, Colorado and South Carolina.
“The class action counterclaim reinforces the point that each and every lawsuit that Righthaven files can become an expensive drawn-out battle, with the associated drag in Righthaven’s profitability,” he said. “I would be surprised if Righthaven’s initial pro forma had budgeted for the costs and hassles of fighting a class action counterclaim, even if Righthaven defeats it.”
A Las Vegas attorney familiar with Righthaven told the Las Vegas Sun and its sister newspaper VEGAS INC that some of the counterclaim’s assertions may not hold up.
For instance, the counterclaim complains about Righthaven failing to send take-down notices before suing. But takedown notices are required only in limited circumstances where material was posted by a third party and the website has registered an agent for receipt of takedown notices with the U.S. Copyright Office.
This attorney said the counterclaim’s charge that Righthaven doesn’t own the copyrights it sues over could be effective, if judges buy that argument. But there’s so much ambiguity over Righthaven’s standing to sue that it’s unlikely its conduct has risen to the level of violating Colorado’s unfair and deceptive trade practice law as alleged in the counterclaim.
The attorney said it’s obvious Righthaven was over-reaching in demanding the seizure and forfeiture of website domain names — widely criticized as a tool to coerce settlements — but again he doubted this amounted to an unfair or deceptive trade practice.
Claims that Righthaven didn’t properly investigate jurisdiction and fair use issues before filing its suits are probably weak as these are subjective, the attorney said.
In other Righthaven developments Tuesday:
• Righthaven may need to find a new local attorney in South Carolina for its lone lawsuit there against blogger Dana Eiser. Attorney Edward Fenno filed court papers Tuesday saying he’s withdrawing from the case for undisclosed reasons.
• U.S. District Judge James Mahan in Las Vegas dismissed a Righthaven lawsuit over Review-Journal material against Larry C. Johnson after Johnson argued he was not served in time. Johnson has a website called noquarterusa.net. Mangano said not much should be read into the dismissal, because Righthaven had settled with Johnson before the case was closed by Mahan.
• Colorado defendant Donald Douglas (americanpowerblog.blogspot.com) filed a motion to dismiss the Righthaven suit against him, complaining he “is the target of yet another copyright trolling action by Righthaven.”
Douglas said he suspects Righthaven doesn’t have standing to sue under its lawsuit contract with the Denver Post and asked the court to require Righthaven to make the contract public.
“The plaintiff’s business model is tantamount to legal extortion. Righthaven’s business model is based on coercion,” Douglas complained. “Plaintiff’s model is predicated on a corrupt and fraudulent scheme, for Righthaven has no actual or legitimate business interest in protecting copyrights or vindicating its alleged legal rights.”
Also filing a motion to dismiss were attorneys for Colorado defendant Leland Wolf (itmakessenseblog.com), who similarly argued: “Righthaven very likely is neither the owner nor exclusive holder of any rights in the copyrighted work underlying this lawsuit. As such, Righthaven has suffered no injury or other cognizable harm required for it to have standing. Absent this very basic requirement of standing, there is no subject matter jurisdiction in this case, and this court must immediately dismiss the case.”
His attorneys filed a motion to conduct discovery so they can see the lawsuit contract between Righthaven and the Denver Post, writing, “obtaining Righthaven’s agreement with (Denver Post owner) MediaNews group is the fastest route to disposing of this lawsuit.”
Wolf is represented by Denver attorney Andrew J. Contiguglia and attorneys with Randazza Legal Group’s Las Vegas office.
Righthaven has not yet responded to these defendants’ motions.