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: copyright, copyright misuse, dmca, lawsuits, safe harbors, third party liability
Companies: broadband reports, las vegas review journal, righthaven, stephens media


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  1. icon
    average_joe (profile), 14 Sep 2010 @ 5:34am

    Re: Re: Re:

    I just assumed it was some kind of contributory or vicarious liability. I'll do some research on that and see what I come up with and get back to you. Good question.

    As far as the plaintiff's lawsuit itself being the copyright misuse, there isn't much caselaw on point. I did find a case in the Ninth Circuit that indicates copyright misuse is available as a defense, so that would apply in the Righthaven cases which are in the Ninth Circuit. The Supreme Court has never ruled either way on it, and some circuits don't recognize the defense.

    In the digest I was reading last night (A.L.R.) there were about 50 cases of misuse that were like what I thought it was (involving licenses, antitrust, non-competes, etc.) and only one case where the lawsuit itself was the misuse. I had never heard of the lawsuit itself being the misuse, but there it is.

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