Free speech group files counterclaim against copyright enforcement firm

The online freedom of speech group Electronic Frontier Foundation (EFF) continues to pound away on the business model of Las Vegas copyright enforcement company Righthaven LLC, with its attorneys hitting Righthaven with another counterclaim on Friday.

Besides the counterclaim, the EFF is challenging Righthaven’s right to earn attorney’s fees in any of the lawsuits it files and is seeking to block Righthaven from trying to seize the website domain names of the website owners it sues.

Righthaven, the Las Vegas Review-Journal’s copyright enforcement partner, has since March sued at least 166 website operators throughout North American in federal court in Las Vegas.

The suits are typically filed without warning or a request that website operators and bloggers remove Review-Journal material posted on their websites without authorization.

Righthaven and the Review-Journal say the lawsuits are necessary to stop copyright thieves from stealing from the Review-Journal.

Some defense attorneys and critics, however, charge Righthaven is running a frivolous lawsuit litigation shakedown operation, because it sues for $150,000 then usually settles for $5,000 or less — with the settlements less expensive than hiring attorneys to defend the cases.

The EFF, which has called Righthaven a threat to free speech on the Internet, in September signed on to defend the Democratic Underground in a Righthaven copyright infringement lawsuit and filed a counterclaim in that case against Righthaven and Review-Journal owner Stephens Media LLC.

Friday’s counterclaim was filed by EFF attorneys on behalf of Righthaven defendant Thomas DiBiase, a former federal prosecutor who has a website covering “no-body” murder cases — cases that are investigated and prosecuted in which the victim’s body hasn’t been recovered.

The counterclaim says there was no infringement of a Review-Journal story that was displayed on the website because the display was protected by the fair use doctrine of copyright law.

The attorneys say that’s partly because the story at issue is still available for free on the Review-Journal website while Righthaven has no plans to use the story in ways copyright holders normally do — by reproducing it, making derivative works of it or selling, leasing or publicly displaying it.

DiBiase, on the other hand, maintains the no-body website as a nonprofit entity.

“Mr. DiBiase publishes the No Body Website for the purpose of assisting prosecutors and homicide investigators in bringing justice to the friends and families of ‘no body’ murder victims,” Friday’s court filing said.

“Assisting prosecutors and homicide investigators in bringing justice to the friends and families of ‘no body’ murder victims benefits the public interest,” the filing said.

In a separate filing, DiBiase’s attorneys challenged Righthaven’s standard lawsuit demand that the defendant’s website domain name be locked and transferred to Righthaven.

Righthaven typically doesn’t actually try to take control of domain names, but its officials have said domain names are assets that could be seized should defendants fail to pay judgments or if they don’t stop infringing.

Attorneys critical of Righthaven have said that seizure of domain names is common in trademark litigation, but there’s no basis for it in copyright law, and the seizure demands in Righthaven’s lawsuits appear to be included to pressure defendants into settling. EFF attorneys chimed in on that issue Friday.

“Righthaven’s request for a domain-name transfer fails because a plaintiff in a copyright case is only entitled to those remedies that Congress has authorized specifically. The Copyright Act contains no provision permitting domain-name transfer as an infringement remedy, and therefore, a plaintiff may not seek it,” the attorneys wrote. “The remedy of domain-name seizure fails for the additional reason that it would violate Mr. DiBiase’s First Amendment rights. Mr. DiBiase has the right to continue using his domain name to provide information to the public, notwithstanding Righthaven’s infringement allegations concerning a tiny portion of his website.”

The EFF attorneys also asserted Righthaven has no right to seek attorney’s fees in its lawsuits, as the Supreme Court has held that statutory attorney’s fees are only available where there is an independent attorney-client relationship.

In Righthaven’s case, the company is half owned by Las Vegas attorney Steven Gibson and half owned by an affiliate of Review-Journal owner Stephens Media.

“Righthaven is a made-for-litigation entity that was set up and is run by the very lawyers who are prosecuting cases on its behalf. Righthaven is not independent from its litigation attorneys, and therefore, it may not seek statutory attorney’s fees,” the EFF attorneys said in the filing.

“A ruling dismissing these remedies with prejudice is important because it appears that Righthaven’s business strategy is to file dozens of cookie-cutter lawsuits and then seek settlements regardless of the merits. A defendant should not have to account for the sham remedies of domain-name transfer and attorney’s fees when deciding how to respond to Righthaven’s lawsuit,” they wrote.

The attorneys representing DiBiase in Friday’s filings are Kurt Opsahl and Corynne McSherry of the EFF; Colleen Bal and Bart Volkmer of the Palo Alto, Calf., office of the law firm Wilson Sonsini Goodrich & Rosati; and attorney Chad Bowers in Las Vegas.

Righthaven hasn’t yet responded to Friday’s filings in the DiBiase case.

Separately, Righthaven sued seven more website operators in federal court in Las Vegas on Friday. Suits were filed against:

• Paul Stewart, alleged registrant of the website in Harlan County, Ky. An Aug. 11 Review-Journal political story allegedly was posted on that site without authorization.

• Randolph Grant, whom Righthaven says is the registrant of the website, which is a message board focusing on Grenada. Righthaven claims an Aug. 29 Review-Journal story about economic problems contributing to a recent murder-suicide was posted on that site.

• RK Inc. and Richard Kwei, allegedly associated with the website An Aug. 11 Review-Journal political story was displayed on that site without authorization, the lawsuit alleges.

• Alex James, alleged registrant of the website A Review-Journal story from Sept. 10 about weddings planned for the date 10/10/10 (Oct. 10, 2010) allegedly was posted there.

• Jim Horn and Stephen Krashen, associated with the site, where an Aug. 29 Review-Journal story allegedly was posted without authorization. The story was called “Thinking — it only hurts a little.”

• Duncan Shields, alleged owner of the website, where the Aug. 29 murder-suicide story allegedly was posted without authorization.

• Thomas J. Leyden, whom Righthaven says does business in Utah as “Strhate Talk Consulting” and owns the website domain name He’s accused of copying and displaying an Oct. 19 Review-Journal column about the FBI allegedly pressuring a woman for information about the 1998 murders of two anti-racist skinheads in Las Vegas.

Leyden, who recently moved to Las Vegas, said a request for comment from the Las Vegas Sun was the first he had heard of the lawsuit and that no one from the Review-Journal had contacted him or asked him to remove the column from his website.

Leyden said it was not his intent to infringe on a copyright and that the column was posted because of public interest in the murders in which officials arrested and convicted one man and are still trying to gather evidence against one or more additional suspects.

“My idea was to get more readership for them (the Review-Journal) and to let people know about the case,” Leyden said.

A former neo-Nazi skinhead, Leyden said that for years he’s been an advocate against hate and hate crimes and works against the racist skinhead movement by educating the FBI and other law enforcement organizations, the military, educators and students.

Messages for comment were left for the other defendants. As in all its recent lawsuits, Righthaven seeks damages of $150,000 apiece from the defendants as well as forfeiture of their domain names.