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 @ 7:19am

    Re: Re: Re:

    Looking at the complaint, it appears Righthaven is saying it's both direct and indirect infringement.

    For direct infringement, the plaintiff must satisfy two requirements for a prima facie case: (1) they must show ownership of the allegedly infringed material, and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders.

    In the complaint, Righthaven indicates that they have ownership of the material in question, and they allege that the defendants "willfully copied, on an unauthorized basis, the Work" and that they "displayed, and continue to display, an unauthorized reproduction of the Work."

    So they're arguing direct infringement.

    For contributory infringement the standard is: One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a contributory copyright infringer; liability exists if the defendant engages in personal conduct that encourages or assists the infringement.

    In the complaint, they say the defendants "knew, or reasonably should have known, that websites, such as the Website, are and were at all times relevant to this lawsuit, the habitual subject of postings by others of copyright-infringing content." In other words, the defendants knew or should have known that users were making postings. And then they go on to say that the Website didn't have any proactive policy of precluding, monitoring, or deleting infringing content. This "failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the Website constituted and constitutes the Defendants’ willful blindness to copyright infringements occurring on the Website."

    So they're arguing secondary liability as well.

    It's not the clearest complaint I've ever read, but it's clear enough that they're alleging direct and indirect liability.

    As to whether or not the complaint is "objectively meritless" see my post above about meritorious suits--the bar is set pretty low. It's only frivolous if the plaintiff cannot make good faith arguments on the merits. I don't believe that to be the case here.

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