In an email received from a Las Vegas Sun reporter on May 6 The Law Med Blog was informed that a federal lawsuit had been filed against us claiming copyright infringement. Our first reaction was ‘nice try but jokes like this can’t fool us’ (not everyone likes what we blog about here as strange as that seems). But the email included a link to a NY Times story entitled “Enforcing Copyrights Online for a Profit” that stopped our laughter.
Indeed such a lawsuit has been filed, though we have yet to be served with the complaint. With the clear awareness that anything the Law Med Blog says or does going forward is potentially admissible as evidence in the case, including this post, our response is “Bring it on”. We have all seen defendants in lawsuits offer up the pat answer of “no comment” due to “pending litigation” which as a rule is often a very wise philosophy in the best interest of a successful defense. In this instance however Law Med finds itself in the middle of landmark predatory litigation over internet content rights. And we are not alone. Some 274 similar lawsuits have been filed by Righthaven LLC, a company that popped up with the sole business of trolling the internet for alleged copyright infringement. Once found, the company purchases the Copyright from the holder, enters into an agreement to split the proceeds obtained from litigating the infringement (if they sue and win $$$), and then files a lawsuit in Federal Court asking for $150,000 in statutory damages, surrender of the domain name, shutdown of the website, and surrender of all hardware, software, media, etc. used to post the copyrighted material.
The lawsuit against Law Med apparently claims copyright violation for content used in our reporting of the Nevada Hepatitis C outbreak. Our targeted audience of anesthesia providers has a unique professional interest in the Nevada incident, and our theme of law converging with medicine make it a highly relevant topic to our blog.
The Internet Copyright Troll Righthaven appeared on the scene in 2010 and limits is activities to copyrighted material from the Denver post and the Las Vegas Review Journal.
Righthaven LLC is owned 50/50 by two limited liability companies. The first is Net Sortie Systems, LLC, which is owned by Las Vegas attorney Steven Gibson – the Nevada attorney who is behind all of the lawsuits filed by Righthaven. The second is SI Content Monitor LLC, which is owned by family members of investment banking billionaire Warren Stephens whose investments include Stephens Media, LLC which owns the Las Vegas Review-Journal. Righthaven’s business arranagement is memorialized in a Strategic Alliance Agreement between Righthaven LLC and Stephens Media LLC (an arrangement that some commentators (here) argue renders void Stephens Media’s copyright assignments to Righthaven, thereby nullifying Righthaven’s standing to bring its copyright infringement actions). A visual guide of Righthaven’s corporate structure can be viewed here. RighthavenLawsuits.com
Righthaven has targeted a handful of established for profit websites like the Drudge Report, but mostly targets small, “mom and pop” websites and blogs. They do so without warning, without any request for material to be removed, and they do so by filing Federal lawsuits in Nevada, Colorado or South Carolina, NOT the home state of the defendant as is arguably required in federal lawsuits, in what appears an obvious attempt to intimidate and frighten defendants who do not have the resources to fight the litigation, into quick settlements for a couple thousand dollars. These lawsuits are the first of their kind in their broad scope and sheer number.
The Righthaven Victims Blog describes it this way: Righthaven LLC — a bottom feeding legal outfit — has teamed up with the Las Vegas Review-Journal and the Denver Post to sue ‘mom and pop‘ websites, advocacy and public interest groups and forum board operators for copyright violations. The strategy of Righthaven is to sue thousands of these websites and counts on the fact that many are unfunded and will be forced to settle out of court. Most cases are being filed in a Nevada Federal Court and must be fought in this jurisdiction.
As of May 10, 2011 it is estimated that Righthaven has collected nearly $500,000 in 139 cases that were settles out of court for an estimated $3,500 each. When the alternative is to spend many tens of thousands of dollars defending against such a suit, it is easy to see how targeted basement bloggers are quick to give in.
The Law Med Blog can state without hesitation that should the lawsuit filed be served, Law Med will NOT enter into a settlement but will file an answer and any motions, counterclaims, etc. that are warranted and avail itself of all legal avenues and remedies in its defense. We will not simply soil ourselves and take out our checkbook because a ‘big scary lawsuit’ has been filed. We are fortunate to have the knowledge and resources that allow us to see this for what it is and exert our rights under the law to successfully defend against it. The outrage is that other defendants do not…and Righthaven counts on that fact when targeting them.
Fair Use of Copyrighted Material is Lawful
US Copyright law allows for fair use of copyrighted material. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”. Factors used in determining whether fair use applies include the amount of material used, whether it is used for commercial purposes, the nature of the copyrighted work and the effect on the market or the potential market (of the copyrighted work).
Class Action Lawsuit Filed Against Righthaven
Vegas Inc, sister site of the Las Vegas Sun reports:
One of the website operators accused of copyright infringement by Righthaven LLC has retaliated, hitting the Las Vegas company with a class-action counterclaim seeking to represent defendants in all 57 Righthaven cases in Colorado.
While the counterclaim mentions all 275 Righthaven lawsuits, it covers only those filed in Colorado.
It charges defendants in all the Righthaven lawsuits “are victims of extortion litigation by Righthaven, which has made such extortion litigation a part of its, if not its entire, business model.”
“As a result of Righthaven’s unlawful actions, class plaintiffs and members of the proposed class were forced either to fight needless litigation or to pay Righthaven a settlement fee, which they would not have had to pay, had Righthaven engaged in legitimate business practices,” charges the counterclaim, which specifically accuses Righthaven of violating Colorado’s law against unfair and deceptive trade practices.
Righthaven Unlawfully Asks Courts to Transfer Domains and Shutdown Websites
As one of their scare tactics, Righthaven requests in their lawsuit that the court order the company where the domain name is registered (in our case Godaddy) “lock” the domain name and transfer ownership to Righthaven, effectively closing the website forever. Federal copyright law specifically outlines the remedies available for copyright infringement and this is not one of them….and Righthaven has been told so by the court. Despite knowing full well it is an unlawful remedy, Righthaven continues to ask for it in new lawsuits as part of their “extortion”. In fact, immediately after the court ruled against them they not only filed lawsuits continuing to ask for this remedy but upped the ante and included a plethora of other unlawful remedies including the surrender of hardware, software, servers, etc. If successful, Righthaven apparently would have the court order Law Med to surrender any computer, rights or licenses to software, keyboards, mouse, router, modem, ethernet cable, extension cords, etc. used in posting the material in question.
We will have lots more on the lawsuit in the days to come!!
Latest news list from RighthavenLawsuits.com:
Colo. judge ices Righthaven suits (Newspapers and Technology, May 23, 2011)
Copyright troll Righthaven takes another hammering (Edward Berridge, TechEye, May 23, 2011)
Colorado Judge Stays Righthaven Copyright Suits (Wendy Davis, Mediapost, May 20, 2011)
Denver Judge Taps Brakes on Righthaven Copyright Lawsuits (David Kravets, Wired.com, May 20, 2011)
Allegedly fabricated press release at issue in Righthaven case (Steve Green, VegasInc, May 20, 2011)
Colorado Judge Puts All Righthaven Cases On Hold (Mike Masnick, Techdirt, May 20, 2011)
Judge has “serious questions” about Righthaven, halts all Colorado cases (Nate Anderson, ARS Technica, May 20, 2011)
Legal Lasso: Denver Post Copyright Cases Put On Hold (Don Knox and Matt Masich, Law Week Colorado, May 20, 2011)
Judge Puts All Righthaven’s Colorado Cases On Ice (Joe Mullin, paidContent.org, May 20, 2011)
Both sides OK with stay of Colorado Righthaven cases (Steve Green, VegasInc, May 20, 2011)
Denver judge stays all Righthaven cases in Colorado (Steve Green, VegasInc, May 19, 2011)
Bloggers File Unfair Trade Practices Suit Against Righthaven (Lora Bentley, IT Business Edge, May 19, 2011)
Copyright troll Righthaven hit with class action lawsuit (wconeybeer, myce.com, May 19, 2011)
Copyright Troll Company Given Taste Of Its Own Medicine (Joel Hruska, Hot Hardware, May 18, 2011)
Class-action lawsuit targets Righthaven’s “extortion litigation” (Nate Anderson, ARS Technica, May 18, 2011)
Legal expert dubious about class-action counterclaim against Righthaven (Steve Green, VegasInc, May 18, 2011)
Righthaven counter-sued over copyright claims (Edward Berridge, TechEye, May 18, 2011)
Righthaven Target Hits Back With Class Action Counter-Attack (Joe Mullin, paidContent.org, May 17, 2011)
Righthaven hit with class-action counterclaim (Steve Green, VegasInc, May 17, 2011)
Critics: Amendments fail to fix flaws in Righthaven cases (Steve Green, VegasInc, May 16, 2011)
Righthaven, Stephens alliance questioned (News & Tech, May 16, 2011)
Righthaven faces new challenges to copyright suits (Steve Green, VegasInc, May 14, 2011)
From RighthavenLawsuits.com here is a list of selected articles:
- Judge doubtful of Righthaven’s right to sue over R-J material (Steve Green, VegasInc, April 28, 2011)
- Judge grants summary judgment in favor of Righthaven defendant (Steve Green, VegasInc, April 22, 2011)
- Righthaven Business Model Exposed – End Of An Era, Or Spawning Of A New IP Licensing Industry? (Patrick, GameTimeIP, April 20, 2011)
- Attorneys say new evidence shows fraud by Righthaven (Steve Green, Las Vegas Sun, April 17, 2011)
- Judge unseals Review-Journal/Righthaven contract (Steve Green, VegasInc, April 15, 2011)
- Brian Hill: Righthaven drops suit against autistic blogger, warns other targets not to rest easy (Michael Roberts, Denver Westword Blog, April 11, 2011)
- Copyright lawsuit filed over sports-betting content (Steve Green, Las Vegas Sun, April 9, 2011)
- Copyright troll Righthaven’s epic blunder: a lawsuit targeting Ars (Nate Anderson, ARS Technica, March 29, 2011)
- Righthaven lawsuits backfire, reduce protections for newspapers (Steve Green, Las Vegas Sun Business Notebook, March 19, 2011)
- Righthaven loses second fair use ruling over copyright lawsuits (Steve Green, Las Vegas Sun, March 18, 2011)
- Righthaven battles challenges to copyright lawsuit campaign (Steve Green, Las Vegas Sun, March 13, 2011)
- Defense attorneys claim ‘key evidence’ in undermining copyright lawsuits (Steve Green, Las Vegas Sun, March 4, 2011)
- Will Righthaven Copyright Lawsuits Change Excerpting Online? (Jeffrey D. Neuburger, PBS.org – Mediashift, March 3, 2011)
- Righthaven defendant threatens to seek settlement refunds (Steve Green, Las Vegas Sun, February 27, 2011) (includes e-mails from Righthaven’s attorneys)
- National bloggers’ group intervenes in copyright lawsuit campaign (Steve Green, Las Vegas Sun, February 23, 2011)
- Righthaven appealing fair-use ruling in copyright case (Steve Green, Las Vegas Sun, February 15, 2011)
- Righthaven files first judgment motion, demands cash and domain name (Steve Green, Las Vegas Sun, February 12, 2011)
- Las Vegas’s copyright crapshoot could maim social media (John Patrick Pullen, Fortune, January 6, 2011)
- 2010 Faces and Roles of Righthaven Victims (Colleen Lynn, Righthaven Victims Blog, December 31, 2010)
- Judge questions whether nonprofit’s Web posting harmed R-J (Steve Green, Las Vegas Sun, December 28, 2010)
- Righthaven Perfects Online Copyright Trolling — Almost (Erik Sherman, CBS MoneyWatch.com, December 28, 2010)
- Post aligned with ‘bottom feeder?’ (Peter Marcus, Denver Daily News, December 13, 2010)
- Copyright Troll Righthaven’s Number One Supporter Caught Putting Infringing Material On His Own Blog (Mike Masnick, Techdirt, December 10, 2010)
- Drudge Report owner sued by Righthaven (Steve Green, Las Vegas Sun, December 9, 2010)
- Righthaven now working with Media News, sues over Denver Post column (Steve Green, Las Vegas Sun, December 5, 2010)
- Suing Your Readers for Spite and Profit (Beau Hodai, Extra, FAIR, December 2010)
- Judge to Righthaven: Show why lawsuit shouldn’t be dismissed (Steve Green, Las Vegas Sun, November 22, 2010)
- Righthaven seeks to dismiss suit over posting of R-J story (Steve Green, Las Vegas Sun, November 16, 2010)
- Review-Journal Publisher Sherman Frederick, Editor Thomas Mitchell out (J. Patrick Coolican, Las Vegas Sun, November 12, 2010)
- Righthaven: Copyright lawsuits as a business model (Jon Healey, Los Angeles Times, November 4, 2010)
- Free speech group files counterclaim against copyright enforcement firm (Steve Green, Las Vegas Sun, October 30, 2010)
- Righthaven gets legal win in copyright lawsuit campaign (Steve Green, Las Vegas Sun, October 28, 2010)
- Righthaven defendant wins first lawsuit dismissal motion (Steve Green, Las Vegas Sun, October 20, 2010)
- Attorneys accuse Righthaven of settlement shakedown (Steve Green, Las Vegas Sun, October 8, 2010)
- R-J owner faces counterclaim in copyright lawsuit campaign (Steve Green, Las Vegas Sun, September 28, 2010)
- Righthaven judge: Review-Journal ‘implied license’ defense may have merit (Steve Green, Las Vegas Sun, September 20, 2010)
- Righthaven Uses Copyright for Parasitic Bottom Feeding (Erik Sherman, Bnet Blog, September 13, 2010)
- State Bar of Nevada reviewing grievance against Righthaven CEO (Steve Green, Las Vegas Sun, September 13, 2010)
- “Can large-scale copyright enforcement save the newspaper business?” (MP3 file) (September 9, 2010) (Panel discussion featuring Righthaven CEO Steve Gibson, Santa Clara University Law Professor Eric Goldman, and In-House Counsel for newspaper chain Gannett Co., Inc. Barbara Wall)
- Sharron Angle hit with R-J copyright infringement lawsuit (Steve Green, Las Vegas Sun, September 3, 2010)
- Righthaven wins key ruling as new criticism leveled over suits (Steve Green, Las Vegas Sun, September 3, 2010)
- Commentary: Why we are writing about the R-J copyright lawsuits (Steve Green, Las Vegas Sun, September 1, 2010)
- Related Article: Protecting newspaper content — You either do it, or you don’t (Sherman Frederick’s Blog, Publisher of the Las Vegas Review Journal, September 1, 2010) (responding to Steve Green’s commentary about the Sun’s coverage of Righthaven’s lawsuits)
- Related Article: Protecting Newspaper Content II: Thieves are thieves (Sherman Frederick’s Blog, Publisher of the Las Vegas Review Journal, September 2, 2010)
- Related Article: LVRJ Defends Righthaven Suits; Mocks Competitor For Highlighting Problems With Them (Mike Masnick, Techdirt, September 2, 2010)
- Are Newspaper Copyright Lawsuits Fair Enforcement or ‘Legal Extortion’? (Adam Hochberg, PoynterOnline, August 31, 2010)
- Settlement reached after judge refuses to dismiss copyright suit (Steve Green, Las Vegas Sun, August 31, 2010)
- Judge questions Righthaven over R-J copyright suit costs (Steve Green, Las Vegas Sun, August 26, 2010)
- Consumer group offers help to defendants over R-J copyright suits (Steve Green, Las Vegas Sun, August 25, 2010)
- Could The Legality Of Google’s Cache Kill Righthaven’s Copyright Claims? (Mike Masnick, Techdirt, August 19, 2010)
- Website operators use new defenses to fight R-J copyright suits (Steve Green, Las Vegas Sun, August 18, 2010)
- How To Make Sure You Don’t Accidentally Visit Organizations That Don’t Want You (Clayton Cramer, August 18, 2010)
- Is This the Birth of the Copyright Troll? (Joe Mullin, Law.com, August 16, 2010)
- Websites, bloggers make moves to avoid Righthaven lawsuits (Steve Green, Las Vegas Sun, August 9, 2010)
- Legal attack dog sicked on websites accused of violating R-J copyrights (Steve Green, Las Vegas Sun, August 4, 2010)