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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    average_joe (profile), Sep 29th, 2010 @ 7:34am

    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?

     

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  2.  
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    Jay (profile), Sep 29th, 2010 @ 8:09am

    @average joe

    As noted, when people are looking at the dollar signs, they fail to take necessary precautions to protect themselves

     

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  3.  
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    weneedhelp (profile), Sep 29th, 2010 @ 8:13am

    EFF rules

    They are the best. If it was not for them, I would still have my head in the sand.

     

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  4.  
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    Anonymous Coward, Sep 29th, 2010 @ 8:25am

    So, they put 18 or 19 different share links on every story they publish and then sue the pants of anyone who attempt to make use of those links.

    What I want to know is why is it entrapment if the government does it, but private citizens/companies get to do it all day long?

     

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  5.  
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    Mike Masnick (profile), Sep 29th, 2010 @ 8:26am

    Re:

    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.

    I saw that in the filing, and went looking myself and couldn't find it... but honestly thought that there was no way it could possibly be true, so didn't even mention it.

    But, yeah, if they didn't... wow. Especially since they've been really careful (as far as I can tell) to not sue sites that do have registered DMCA agents.

     

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  6.  
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    Mike Masnick (profile), Sep 29th, 2010 @ 8:28am

    Re: Re:

    To clarify: the registered DMCA agent bit only applies when they sue sites where the content was posted by forum users. It doesn't matter when posted by site owners, so not sure if they care about the DMCA status on those lawsuits.

    But, yeah, if they really haven't registered, it would be quite an interesting scenario if they got sued for someone posting copyright content in their forums.

     

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  7.  
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    Gracey (profile), Sep 29th, 2010 @ 8:47am

    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".

     

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  8.  
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    whytewolf (profile), Sep 29th, 2010 @ 8:50am

    honestly about the copyright not being changed on the bottom of the lvrj.com pages that have been "signed" to righthaven. it amounts to the people who run that website not having the mental capacity to know how. the copyright is just part of the template.

     

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  9.  
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    average_joe (profile), Sep 29th, 2010 @ 9:18am

    Re: Re: Re:

    If someone wanted to be really evil, hypothetically speaking of course, they could do something like this: Write a silly poem about Righthaven and then post it on some poetry site where anyone can see it. Anonymously log in to lvrj.com and post the poem in their comments section. Register your poem with the copyright office and then sue lvrj.com for $150,000. Demand their domain name too for good measure.

    Heck, if someone found their work infringed on lvrj.com, I might even buy the rights from them, register it, and then file suit myself. I heard you can make good money that way. :)

     

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  10.  
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    average_joe (profile), Sep 29th, 2010 @ 9:20am

    Re:

    The share features they have only let you share a link to the original article on the lvrj.com website, not the text of the article itself. There's a big difference. Not surprisingly, this difference was left out of the Answer/Counterclaim. I'm sure Righthaven will harp on it in their response.

     

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  11.  
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    average_joe (profile), Sep 29th, 2010 @ 9:47am

    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.

     

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  12.  
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    MrWilson, Sep 29th, 2010 @ 10:05am

    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..."

     

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  13.  
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    average_joe (profile), Sep 29th, 2010 @ 4:02pm

    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...

     

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  14.  
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    Mike Masnick (profile), Sep 29th, 2010 @ 8:53pm

    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...

    I don't think that's correct. The countersuit lets them go after Stephens Media, rather than just Righthaven.

     

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  15.  
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    average_joe (profile), Sep 30th, 2010 @ 5:30am

    Re: Re: Re:

    Good point. They're trying to bring in Stephens Media, but I don't know if it's going to work though. The judge may not think that they're really a party to this. I think it's a bit of a stretch.

     

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  16.  
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    Dan T., Sep 30th, 2010 @ 7:12am

    DMCA

    How come the DMCA isn't directly cited in this response? I'd think it would be applicable, particularly the notice and takedown requirements that Righthaven didn't follow before they sued over user-posted material.

     

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  17.  
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    average_joe (profile), Sep 30th, 2010 @ 7:33am

    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.

     

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  18.  
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    average_joe (profile), Sep 30th, 2010 @ 8:16am

    Re: Re: Re:

    Looking at the docket, the last entry yesterday was:

    "PROPOSED SUMMONS to be issued to Stephens Media LLC, filed by Counter Claimant Democratic Underground, LLC. (Opsahl, Kurt) (Entered: 09/29/2010)"

    The proposed summons is just a standard, fill-in-the-blank summons. I'm really curious what's going to happen once Stephens Media shows up. Surely they're going to start out arguing that they're not a party to this case. I'm inclined to think the judge will agree.

     

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  19.  
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    average_joe (profile), Sep 30th, 2010 @ 2:40pm

    Re: Re: Re: Re:

    I don't think that's correct. The countersuit lets them go after Stephens Media, rather than just Righthaven.

    The more I think about it, the more I think it really is just about PR. Adding Stephens Media to the counterclaim gets them that much more media coverage. Think about it. Stephens Media is not a necessary party.

    The counterclaim is only to have Democratic Underground's use declared noninfringing. They don't need Stephens Media to be a party to get that declaration. All they need is Righthaven.

    Heck, they don't even need to file a countersuit to get the declaration. As I stated above, this is already their defense. The counterclaim is superfluous.

    And, good grief, that list of defenses. Half of those don't even pass the laugh test. Again, I think it's all for PR.

    If this thing goes to trial, I suspect Democratic Underground might win, but only on the fair use defense. But that'll be all that they need.

    I think EFF chose this case because it's one of two or three out of close to 145 Righthaven cases where it's less than the whole article that's been copied. This case has the best chance of winning.

    I wonder if they'll defend any of the cases where an entire article was copied.

     

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  20.  
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    Dave (profile), Apr 18th, 2011 @ 8:59am

    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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