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 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. identicon
    Anonymous Coward, 14 Sep 2010 @ 6:49am

    Copyright Misuse on Wikipedia

    And people laugh at Wikipedia LoL

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

    Some more sources: tories/2003/20030826.asp 2-21-08_Copyright_Misuse.pdf+copyright+misuse&hl=en&gl=us&pid=bl&srcid=ADGEESh3xwdtO meDUlBSl3AyO6MY86_GugCsRv8nQmzx_TLDBBLMnxysxEKasuqIXy42PCfL7nz-pfE2NuQu7i0xvLKZL9V0-GuODIMxWmzok4YxO al-zEyilim3ocfHiSTMRwmO_w8a&sig=AHIEtbRwjqsrF8nanXpjlYF3EBcajsMMFQ


    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."


    - 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.

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