Righthaven faces seventh counterclaim over copyright lawsuits

Las Vegas newspaper copyright enforcer Righthaven LLC was hit with a seventh counterclaim Tuesday, this time over one of its lawsuits over the Denver Post TSA pat-down photo.

Attorneys Natalie Hanlon-Leh and Spencer Ross of the firm Faegre & Benson LLP in Denver filed the counterclaim in behalf of Freedom Force Communications, The Say Anything Blog, Scott Hennen and Rob Port. They were sued Feb. 4 after the photo appeared on the Minot, N.D.-based sayanythingblog.com website.

Righthaven, which sues over Las Vegas Review-Journal and Denver Post material, as usual in the lawsuit demanded $150,000 in damages and forfeiture of the sayanythingblog.com website domain name. Righthaven since March 2010 has filed at least 249 copyright infringement lawsuits against website operators, bloggers and message board posters.

A Righthaven court exhibit indicates the Denver Post was not credited as the source of the photo in the Nov. 20 post on The Say Anything Blog.

The Say Anything Blog answer and counterclaim to the copyright infringement lawsuit charged, without elaboration, that Righthaven lacks standing to assert the copyright infringement claim.

Righthaven's right to sue over copyrights it obtains has been upheld by Nevada judges, but so far the Colorado and South Carolina judges assigned to Righthaven's cases haven't yet ruled on that issue.

In Nevada, defendant the Democratic Underground says it has obtained new evidence undermining Righthaven's right to sue and backing up the Democratic Underground's claims that Righthaven's lawsuits over Review-Journal material are based on sham copyright transfers. Righthaven has denied these assertions.

In the Say Anything Blog case, the defendants' counterclaim is based on their assertion the use of the Denver Post photo was protected by the fair use doctrine of copyright law.

"Plaintiff’s copyright infringement claim is barred, in whole or in part, by the fair use defense," Tuesday's court filing in Denver said. "Plaintiff’s copyright infringement claim is barred by the First Amendment of the United States Constitution."

The counterclaim said Rob Port, editor of the blog, used the photo in "a political blog posting designed to stimulate debate and foster discussion as to whether or not the Transportation Security Administration should be privatized to more effectively combat terrorism."

This is the first counterclaim Righthaven has faced in the 45 suits it has filed over the Denver Post photo, which was distributed to media outlets by The Associated Press and went viral online as a symbol of new aggressive searches of passengers by the TSA.

Earlier, a counterclaim was filed in a Righthaven lawsuit over a Denver Post column and five more counterclaims were filed over lawsuits involving Review-Journal material. All seven counterclaims remain active and it's impossible to say when they'll be resolved or settled.

Righthaven has not yet responded to the latest counterclaim.