EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media

from the copyright-attack dept

It’s been a not-so-well-kept secret that the EFF has been actively looking for one of the sites sued by Righthaven to help defend, and it’s apparently found one in the forum site, Democratic Underground, filing the response and a series of counterclaims, not just against Righthaven, but against Stephens Media (the publisher of the Las Vegas Review Journal, and the company that funded Righthaven). The Las Vegas Sun has a good overview of the counterclaims and defenses. Helping out the EFF is Andrew Bridges, who is known for challenging questionable copyright lawsuits with creative, but solid, defenses — so some of the defenses here shouldn’t be all that surprising.

The key part of the countersuit is bringing Stephens Media back into the lawsuit, claiming that the two companies are so closely related, that Righthaven is not really acting as a separate company. While the lawsuit does include a bunch of similar arguments to those we’ve seen elsewhere, one interesting point shows that Righthaven claims to buy the copyright from Stephens Media on the stories it sues over, but the stories still show up on the LVRJ site saying “Copyright © Las Vegas Review-Journal.” Thus, the EFF suggests that there’s a false copyright notice involved here.

Another counterclaim notes that Stephens Media and the LVRJ have their own forums, where they specifically state that it’s impossible to monitor the content in those forums, and they are not responsible for that content — and yet, they are suing another forum owner for content posted by users in that forum. Related to that (but without much elaboration), the counterclaim suggests that LVRJ employees themselves have been reposting copyrighted material that they do not hold the rights to.

Another amusing bit is that the EFF may have caught Righthaven/Stephens Media not obeying the rules that they, themselves, set forth. In earlier discussions over what would count as “fair use,” a Righthaven attorney claimed that two paragraphs from a story would be okay (which is arbitrary and has nothing to do with what the law actually says), but in this case, the EFF notes that the forum user only posted 5 sentences out of a 50 sentence article, suggesting that it was clearly fair use.

The counterclaims also make a pretty strong argument that there is minimal harm done in the type of copying done here, noting that if Righthaven actually owns the copyright, there’s no evidence that it is trying to license it or to make money from it in any way other than through these lawsuits. It also points out that, the forum posting that they’re suing about, increased traffic to their site rather than decreased it, and that they likely profited from advertising on the page from the visits sent by the Democratic Underground forum. As for the Democratic Underground site making money from the content, they point out that the page generated all of about $1 in ad revenue.

The response also asks for attorney’s fees from Righthaven and Stephens Media. While that may be a longshot, if they get it, it certainly would put a pretty big bite into whatever money Righthaven and Stephens have made from previous lawsuits.

Filed Under:
Companies: eff, righthaven, stephens media

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Comments on “EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media”

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20 Comments
average_joe says:

An interesting tidbit from Answer/Counterclaim was that lvrj.com does not appear to have a designated DMCA agent. They can’t be that dumb, can they? I looked on the copyright.gov website and couldn’t find a listed agent. I checked under lvrj.com, stephensmedia.com, and reviewjournal.com. Maybe I’m missing it, but I don’t think it’s there.

It would be all too easy for someone to post infringing material on their website and then sue them for infringement. Given how many people they’re pissing off, this seems all but assured. They’re not that dumb, are they?

MrWilson says:

Re: Re:

You say entrapment, the company calls it a business model. The reason the government can’t do it is because then the government would be unfairly competing with business interests.

Besides the government only exists to preserve entrenched business interests and make sure the hoi polloi doesn’t get too big for its britches and expect rights or fairness or silly things like that.

(And yes, I know “hoi polloi” means “the majority” and thus the insertion of “the” in front of the term is redundant but it just doesn’t sound right to say “the polloi” or “…make sure hoi polloi…”

Gracey (user link) says:

I’m fairly interested in following this particular part of the case even though I’m not an American. What I find most interesting is that the claimants feel their own steps to avoid copyright infringements in their own forums are suitable, but then say those same (similar) steps on someone else’s forum aren’t?.

That isn’t new, of course, we see this sort of thing in many avenues of business…but…”gee whiz that’s stupid”.

average_joe says:

So here are all 20 defenses listed in the Answer:

**********

DEFENSES

Defendants assert the following defenses, without regard to whether they are “affirmative” defenses or matters as to which the Plaintiff has the burden of proof.

1. Plaintiff’s Complaint, and each cause of action within it, fails to state a cause of action.
2. Process has been insufficient.
3. Service of process has been insufficient.
4. This court lacks personal jurisdiction over Defendants.
5. This court is not a proper venue for this action.
6. Plaintiff’s claims are barred by its failure to join indispensable parties.
7. Plaintiff’s claims are barred by the doctrine of fair use.
8. Plaintiff’s claims are barred by the First Amendment to the United States Constitution.
9. Plaintiff’s claims are barred by consent, waiver, acquiescence, license, and estoppel.
10. Plaintiff’s claims are barred by its failure to mitigate damages.
11. Plaintiff’s claims are barred by the equitable doctrine that the law does not concern itself with trivial matters (commonly known as de minimis non curat lex).
12. Plaintiff’s claims are barred by laches.
13. Plaintiff’s claims are barred by the doctrine of unclean hands.
14. Plaintiff’s claims are barred to the extent any persons, based on whose behavior Plaintiff seeks to hold Defendants liable, are innocent infringers.
15. Plaintiff’s claims are barred due to copyright misuse.
16. Plaintiff’s claims are barred to the extent it has caused fraud upon the Copyright Office.
17. Plaintiff’s claims are barred to the extent it has forfeited or abandoned copyright.
18. Plaintiff’s claims are barred because Plaintiff is engaging in barratry, champerty, and maintenance.
19. Plaintiff’s claims for statutory damages are barred or limited by the United States Constitution.
20. Plaintiff’s claims are barred because Plaintiff lacks standing.

**********

It’s not everyday you see someone bring up laches, barratry, and champerty. LOL! Clearly they’re going with the “throw the whole book at ’em” defense strategy.

It’s kind of a silly list though, since most of those defenses don’t even have a chance of winning. The answer sketches out the arguments for some of the defenses, but it’s silent for the others. That’s not too surprising since the arguments aren’t really sussed out at this stage of things. I look forward to seeing their arguments in more detail if things get to the point where they make them. I suspect that if this makes it to trial, that list will be a lot shorter at that time.

I think that clearly the best defense here is fair use. I suspect EFF got involved in this case because it’s one of only two or three where the infringement involved less than the whole lvrj.com article. Not copying the whole article really helps out when arguing fair use.

I’m a little confused though about exactly what the counterclaim strategy is. Apparently their entire counterclaim is for a “Declaration of No Copyright Infringement.” Huh? I’ve never heard of anyone counterclaiming for a declaratory judgment that their use is not infringing. This doesn’t make sense to me since their defense is that their use is not infringing. If you’re already asking the court to declare that your use is not infringing as your defense, what’s the need for a counterclaim for the same declaration? Perhaps they have a strategy, but to me it doesn’t make sense.

average_joe says:

Re: Re:

As I read the headlines and news reports about this I think I understand the counterclaim: It’s just for PR. EFF is trying this in the court of public opinion. They’re getting headlines, like techdirt’s above, saying that they are suing Righthaven back. And technically that’s true. I haven’t seen anyone picking up on the fact that the counterclaim isn’t asking for anything different than what their defense is already asking for. Ah, details…

average_joe says:

Re: DMCA

Righthaven only has to issue a takedown notice if the infringing material is posted on a website that has set themselves up with a registered DMCA agent to receive takedown notices. As far as I know, Righthaven is only targeting websites that haven’t registered a DMCA agent, so there’s no requirement to issue a takedown notice.

And as Mike pointed out above, takedown notices are only appropriate where a user of the website has posted the material. If the owner of the website posted the material themselves, then there’s no requirement to issue a takedown notice even if they have a registered DMCA agent.

Dave (profile) says:

Stephens Media - Righthaven

Stephens Media CREATED Righthaven in order to take care of these legal issues without exposing Stephens Media or the Las Vegas Review Journal. Stephens Media needs to be pulled into this because this relationship constitutes a sham to make money off of law suits instead of selling papers & content. Yes, it is the new business model for publishers to make money off of law suits and not have to worry about creating a business model that honestly works with the technology of today.

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