R-J owner faces counterclaim in copyright lawsuit campaign

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The owner of the Las Vegas Review-Journal has for the first time been hit with a counterclaim over its online copyright infringement lawsuit campaign, with attorneys for the Electronic Frontier Foundation accusing the newspaper of entering a "sham" relationship with the Review-Journal's copyright enforcement partner Righthaven LLC — and accusing Righthaven of copyright fraud.

Attorneys for the Electronic Frontier Foundation, an influential Internet freedom of speech and privacy group based in San Francisco, filed the counterclaim Monday in federal court in Las Vegas against Review-Journal owner Stephens Media LLC as well as Righthaven.

Righthaven is a company owned by Las Vegas attorney Steven Gibson and an affiliate of Stephens Media's parent company in Arkansas.

Righthaven detects online infringements to Review-Journal stories, obtains copyrights from Stephens Media to those stories and then sues websites where the stories had been posted weeks or months earlier by webmasters or third-party message-board and forum users. Through Monday, 141 suits had been filed against defendants in the United States and Canada.

The Electronic Frontier Foundation (EFF) says the lawsuit campaign threatens freedom of speech on the Internet as Righthaven generally sues without first asking that infringing material be removed from websites or be replaced with links as is the standard practice in the U.S. newspaper industry.

Besides recruiting attorneys to represent Righthaven defendants for free as a public service, attorneys for the EFF are representing the Democratic Underground LLC in a Righthaven lawsuit over the posting by a message board user of four paragraphs of a 34-paragraph Review-Journal political article.

The EFF attorneys filed their counterclaim in that case Monday, raising defenses previously raised by some other defendants including fair use; unclean hands and barratry (the alleged excessive incitement of litigation); and champerty (an allegedly improper relationship between one funding and one pursuing a lawsuit).

The EFF also raised new allegations against Righthaven, accusing it of causing "fraud upon the Copyright Office."

"This case is a particularly abusive instance of a broad and aggressive strategy by Stephens Media, working in conjunction with its 'little friend' Righthaven as its front and sham representative, to seek windfall recoveries of statutory damages and to exact nuisance settlements by challenging a fair use of an excerpt of an article that Stephens Media makes freely available on the Internet, and which it encourages its users to 'Share & Save' at least 19 different ways," the EFF attorneys wrote in their counterclaim.

The "little friend" reference relates to Review-Journal Publisher Sherman Frederick calling Righthaven his "little friend" in copyright protection matters.

The counterclaim went on to allege:

--Righthaven's business model is to sue in hopes of intimidating defendants into quickly settling for thousands of dollars. (Righthaven typically sues for $150,000 but has been known to settle for $5,000 or less. It demands that defendants forfeit their website names, but so far has let settling defendants keep their names. Righthaven initially demanded $75,000 in statutory damages in its suits but lately has been demanding $150,000, without explaining the increase.)

--"Righthaven has not published any works (stories) with a copyright notice identifying itself as copyright owner of the published work. Counterclaimant believes and therefore alleges that Righthaven has not sued to enforce any copyrights other than copyrights in works in which it claimed the initial author was Stephens Media. Counterclaimant believes and therefore alleges that the assignment of copyright from Stephens Media to Righthaven underlying the claims in this case is a sham."

--"Stephens Media retains some legal or equitable interest in some copyright rights in the news article. Counterclaimant believes and therefore alleges that Righthaven is acting as agent of Stephens Media in connection with the claims Righthaven asserts in this case. Counterclaimant believes and therefore alleges that Stephens Media is an alter ego of Righthaven for the purposes of this case and that any separation between them for the purposes of this lawsuit is a sham."

The Democratic Underground response also noted that on the Review-Journal website's privacy statement, it's stated by Stephens Media that "we do not and cannot monitor materials transmitted by users or third parties into bulletin boards, chat rooms and the like."

"Counterclaimant believes and therefore alleges that Stephens Media does not screen all materials transmitted by users or third parties into bulletin boards, chat rooms, and the like before they appear," the response said in an apparent attempt to show that the unauthorized posting of third-party material on websites as alleged in Righthaven lawsuits may also be happening on the Review-Journal website.

The Democratic Underground response then charged Stephens Media has its own copyright issues, alleging: "employees of Stephens Media have cut and pasted excerpts of copyrighted materials to which Stephens Media has no license or copyright rights on multiple occasions."

Kurt Opsahl, a senior staff attorney at the EFF, explained that in covering the news and in writing blogs and reviews, Review-Journal writers regularly cut and paste materials from press releases, books and other materials. This is not necessarily copyright infringement, but Opsahl said this practice was included in the counterclaim because the same type of cutting and pasting resulted in the lawsuit against the Democratic Underground.

The Review-Journal and Righthaven can’t legitimately complain about cutting and pasting of the type in the Democratic Underground case since Review-Journal writers regularly engage in that practice, he said.

Opsahl noted three intellectual property attorneys from the San Francisco law firm Winston & Strawn LLP are working on the case for the Democratic Underground on a pro bono, or public service, basis. They include Andrew Bridges, whom Opsahl called one of the nation’s foremost intellectual property attorneys, with extensive experience defending Internet service providers.

Also working on the case for the Democratic Underground are J. Caleb Donaldson and Kathleen Lu of Winston & Strawn, Opsahl and Corynne McSherry of the EFF; and Las Vegas attorney Chad Bowers.

The counterclaim went on to say that the story at issue that was posted on the Democratic Underground site is still available for free on the Review-Journal website and that the story there includes the notice "Copyright © Las Vegas Review-Journal."

"As of the filing of this answer and counterclaim, that copyright notice was false," the counterclaim charged, noting Righthaven claims to be the copyright owner now.

The Democratic Underground counterclaim also said that in another Righthaven lawsuit, Righthaven attorneys said that excerpting the first two paragraphs — or three sentences of a 28-sentence story — would have been fair use even though that use exceeded 10 percent of the story.

In the Democratic Underground case, five sentences or less than 10 percent of the 54-sentence story were re-posted, the attorneys said.

"In the post on the Democratic Underground website at issue, the five sentences accompanying the link to the news article on LVRJ’s website served to stimulate interest in the article displayed on the LVRJ website," the counterclaim said.

Asked about the counterclaim Tuesday, Mark Hinueber, vice president and general counsel of Stephens Media, said in an email: "We do not comment on pending litigation and have not been served with a copy of the suit."

Righthaven has previously denied the barratry allegation against it. Asked about the counterclaim Tuesday, Gibson said: "The Las Vegas Sun's reporting on this matter has been horribly one-sided, biased and at times in my view not fully accurate."

Gibson declined to cite any specific instances of biased or inaccurate reporting, saying he had no confidence they would be appropriately dealt with.

Separately, three website operators sued Monday by Righthaven responded to queries from the Las Vegas Sun about the lawsuits.

"We have been following this extortion racket with some alarm. Like many others, it seems, we have learned of the lawsuit against National Wind Watch only from your query. Therefore, we have little to say at this time," said Eric Rosenbloom, president of National Wind Watch Inc. in Rowe, Mass.

While an exhibit in the Righthaven lawsuit indicates an entire Review-Journal story was posted on the Wind Watch website, Rosenbloom said: "It is National Wind Watch policy to publish only excerpts of stories from the Stephens Media newspapers, and the article cited in the complaint is no exception: only the first four paragraphs of the 32-paragraph story are reproduced. The source and a link to the original are prominently provided right below the title, as for all news articles that we publish for the benefit of our worldwide audience."

At the AR15.com website, Juan Avila said: "We have not heard anything from any lawyers, nor had we received any emails requesting action on the infringing discussion."

"We are a discussion forum (much like Democratic Underground) and the content was posted by a third party. The discussion had 160 views and two replies, meaning it barely got any attention. It looked like the author posted the article in its entirety as it was not very long. Because of the amount of traffic we get, it's near impossible to find all of these types of posts without help. Anytime an author contacts us with a similar issue, we handle it immediately as per their request," Avila said.

"Typically, they wish to continue to have a link to their article, but ask more of the copied text be removed to help encourage traffic back to their site. We are strong believers in protecting original content, but in an open discussion forum with high traffic, it takes help. Additionally, since web content can be posted by anyone, who is to stop an associate of theirs or employee of the owning company from posting it themselves to create these types of scenarios?" Avila said.

At Climate Change Dispatch, Tom Richard said: "I haven't heard anything about this (lawsuit). I have heard about them and their tactics and have since removed any LVRJ material from the site."

"On the face of it, it looks utterly silly considering we have a mechanism for any DMCA (Digital Millennium Copyright Act) violations via our contact page. It's like using an elephant gun to kill a mouse," Richard said.