Broadband Reports Hit By Righthaven; Goes With Kitchen Sink Approach In Response

from the questions,-questions,-questions dept

We’ve been covering the various stories of Righthaven lawsuits for months now, and one of the latest involves a site that we link to frequently here on Techdirt. The always excellent BroadbandReports.com has been sued by Righthaven after a forum user posted an LVRJ story. The article highlights the long list of defenses that the site is putting up against Righthaven, many of which we’ve seen from other Righthaven defendants, such as Nevada being the inappropriate venue and that Righthaven offers up an “implied license,” with its encouragement to share.

That said, reading between the lines of the responses, it certainly looks like the site had not registered with the Copyright Office to get DMCA safe harbors. In fact, so far as I can tell, while Righthaven has sued multiples sites that involved forums where the content was posted by a third party, the company has been careful to only sue those without a registered DMCA agent. I’d be curious if there were any examples to the contrary, as I’ve yet to find one. So, first, a quick public service announcement: if you run any sort of site that allows public participation — blogs, forums, whatever — register with the copyright office for DMCA protection. Do it now. Seriously. It can protect you from this kind of headache.

That said, I think it’s quite an interesting question if a site still deserves protection from liability for third party comments even if they have not registered. I think a very strong case could certainly be made that such protections remain, though it might involve more of a process to have the court recognize this. First, you have the common sense point: which is that it makes little sense to pin liability on a third party tool or service provider that has no idea that a potentially law-breaking action has been taken. Second, the case law in trademarks, where there is no safe harbor as there is in copyright, has found that such service providers are protected anyway. I would think the various wins that eBay has had over Tiffany would be incredibly relevant case law for showing that even absent a registered DMCA agent, a site like BroadbandReports still should not get third party liability for comments of users.

Another argument that I find compelling is the fact that Righthaven made absolutely no effort to mitigate “damages” by first asking the site to remove the content. While Righthaven legally can go straight to suing, courts tend not to look kindly on companies that fail to take basic actions that could mitigate damages even without a lawsuit.

The final interesting defense is a claim of “copyright misuse,” which is a tremendous longshot, but it would be a huge win if the court accepted it, and would more or less represent the end of Righthaven. If you’re unfamiliar with it, copyright misuse is a defense against a charge of copyright infringement, when it’s believed that the copyright holder was abusive or improper in filing the lawsuit. I doubt the court would accept this, though I think the claim actually makes quite a lot of sense. It’s been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees. It would be great if the court smacked them down on a copyright misuse claim, but my guess is that many judges will be afraid to go that far.

Filed Under: , , , , ,
Companies: broadband reports, las vegas review-journal, righthaven, stephens media

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Broadband Reports Hit By Righthaven; Goes With Kitchen Sink Approach In Response”

Subscribe: RSS Leave a comment
37 Comments
KnownHuman (profile) says:

Re: Re:

That’s actually an interesting theory. RightHaven’s brazen, even bullheaded, tactics seem like they’d be fairly easy to steer for personal gain.

Through focusing purely on second-hand liability, a small group could harness RightHaven’s legal team to bully websites said group disagrees with. A modest campaign of copying and pasting could almost guarantee legal action. A court-battle by proxy with (at this point) no foreseeable action against the actual “infringing” entity.

Talk about a combat multiplier.

average_joe says:

The final interesting defense is a claim of “copyright misuse,” which is a tremendous longshot, but it would be a huge win if the court accepted it, and would more or less represent the end of Righthaven. If you’re unfamiliar with it, copyright misuse is a defense against a charge of copyright infringement, when it’s believed that the copyright holder was abusive or improper in filing the lawsuit. I doubt the court would accept this, though I think the claim actually makes quite a lot of sense. It’s been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees. It would be great if the court smacked them down on a copyright misuse claim, but my guess is that many judges will be afraid to go that far.

I don’t think that’s how a defense of copyright misuse works.

From the defendant’s answer: Plaintiff’s Complaint is barred due to the doctrine of Copyright Misuse. Among other things, Plaintiff is not seeking to protect its copyright or to stop infringing activity. It did so to obtain money in excess of the fair and reasonable value of the claimed infringement and to get compensation for its needless and punitive expenditure of legal and filing fees.

That’s not right either.

I’ll research some authority on this and post it.

In general though, copyright misuse is a defense to infringement. The misuse has to be happening when the infringement happens. The misuse claimed here happened after the infringement, so it makes no sense.

average_joe says:

Re: Re:

Well, apparently I’m wrong. It means what I thought it meant, but it means other things to:

Where a copyright misuse defense is based entirely on the misuser’s filing of an infringement suit, it has been observed that the defense would not be appropriate where the court could not conclude that holder’s claims were “objectively meritless.” 185 A.L.R. Fed. 123

I’ll read some case law to get more, but it sounds like you’d have to show the plaintiff’s case was “objectively meritless” to make your defense. This doesn’t seem possible in the Righthaven cases since infringement seems to be a given and the plaintiff’s case is anything but meritless.

nasch (profile) says:

Re: Re: Re:

If everyone in the case agrees that the party being sued isn’t the one who infringed the copyright, that would certainly seem to be a candidate for the “objectively meritless” label. I don’t know for sure, but it sounds like Righthaven knows Broadband Reports didn’t post the infringing material, Broadband Reports certainly knows it, and I assume the judge will soon know it if he doesn’t already. Not that that will necessarily get the case tossed, copyright law is so f-ed up these days.

Michael (profile) says:

Re: Re: Re: Re:

But that is the problem with the current laws (and current case law). It is unclear if Broadband Reports has infringed. Common sense tells us to blame the person who posted rather than the tool provider, but with case law still unclear, it is “reasonable” for Righthaven to believe Broadband Reports could actually lose this case.

It’s stupid, but our laws are so unclear right now about what is infringement and who is responsible that it is really hard for a judge to say anyone should be able to tell without a court making the decision.

average_joe says:

Re: Re: Re:2 Re:

Right. A case is meritorious and not frivolous if there is a good faith argument for extension, modification, or reversal of existing law. I’m pretty sure the fact that the infringing material was posted on the defendant’s site, even if by third-parties, makes the case meritorious on its face which is all that is necessary.

A case is not frivolous merely because the facts have not been first fully substantiated or because the lawyer expects to develop vital evidence only by discovery. It’s not even frivolous even though the lawyer believes that the clients position ultimately will not prevail. It’s only frivolous if the lawyer is unable to make good faith arguments on the merits.

The standard for a case to be frivolous is pretty low.

Anonymous Coward says:

Copyright Misuse on Wikipedia

http://en.wikipedia.org/wiki/Copyright_misuse

And people laugh at Wikipedia LoL

Wikipedia list at least 3 instances where copyright misuse was used.

Some more sources:
http://digital-law-online.info/lpdi1.0/treatise15.html
http://www.techlawjournal.com/topstories/2003/20030826.asp
http://docs.google.com/viewer?a=v&q=cache:CLSilbKF-F8J:www.sfipla.com/2-21-08_Copyright_Misuse.pdf+copyright+misuse&hl=en&gl=us&pid=bl&srcid=ADGEESh3xwdtOmeDUlBSl3AyO6MY86_GugCsRv8nQmzx_TLDBBLMnxysxEKasuqIXy42PCfL7nz-pfE2NuQu7i0xvLKZL9V0-GuODIMxWmzok4YxOal-zEyilim3ocfHiSTMRwmO_w8a&sig=AHIEtbRwjqsrF8nanXpjlYF3EBcajsMMFQ

Quotes:

Similarly, in Brulotte v. Thys Co., 379 U.S. 29 (1964), the Supreme Court held that a patent holder’s attempt to collect royalties beyond the term of the patent constitutes misuse of the patent

Holding in Video Pipeline. The Court noted that misuse “exists where the patent or copyright holder has engaged in some form of anti-competitive behavior.” But, it went on to state that “More on point, however, is the underlying policy rationale for the misuse doctrine set out in the Constitution’s Copyright and Patent Clause … Put simply, our Constitution emphasizes the purpose and value of copyrights and patents. Harm caused by their misuse undermines their usefulness.”

Source:
http://www.techlawjournal.com/topstories/2003/20030826.asp

– If the copyright scope was expanded copyright misuse can be valid.
– If copyright is being used to hinder criticism, copyright misuse can be used.
– If copyright is being used to anti-competitive behavior, copyright misuse also can be used.

Those are not the only defenses used but are the most suscessuful ones to date.

So I think if DSLReports can prove that the behavior of Righthaven is affecting its ability to be critical of Righthaven clients they have a good chance of making the cut.

Copyright misuse was upheld on the 3rd and 9th circuits.

Bob (profile) says:

Throttle down the superlatives bub

It’s been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees.

Uh, correct me if I’m wrong, but there are folks who infringe and Rightshaven is suing them and putting some money in the hands of the real creators. You may not like that they can do this. You may think that the rules for fair use should be broader or they should apply, but it sure seems to me like they’re using copyright law for its intended purpose: creating a temporary monopoly for the artists.

TDR says:

Re: Throttle down the superlatives bub

Show us your documented non-industry evidence that any of the money is going to the creators, Bob. Otherwise you’re wrong.

Also, does anyone know if it’s possible to countersue not for monetary damages but instead to have the opposing group shut down? Because that’s something BR might want to try against Righthaven if possible. Go for the throat, in other words.

Bob (profile) says:

Re: Re: Throttle down the superlatives bub

Rightshaven signed a contract with the owners of the copyright. Money goes to the owners. What planet are you from? Do you think they could just sue people for fun with no standing?

And if you’re going to go for the tired old idea that the money will only go to the newspapers, not the individual reporters, give up. The newspapers will have more money to pay reporters. And the original ones were paid in advance.

average_joe says:

Re: Re: Re:4 Throttle down the superlatives bub

You can’t possibly actually know what all of their motives are, but if you insist that you really know the deep down truth, then good for you. I know you’re just making it up, no matter what you say.

Nevertheless, they said part of it is deterrence, and I think it’s arguable that it’s working.

Anonymous Coward says:

Re: Re: Re:5 Throttle down the superlatives bub

Their motive is displayed by the facts, not my opinions. If they were interested in stopping copyright infringement, they would be pursuing the methods available that could stop copyright infringement within days. They are not pursuing those options (at all, ever), because those methods do not involve the extraction of settlement money.

Feel free to keep denying the obvious. It is good practice for your future career, after all.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...