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October 23, 2014

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R-J accused of entrapment over copyright enforcement

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A website operator is accusing the Las Vegas Review-Journal of entrapment for inviting readers to share its stories online -- and then participating in lawsuits against readers who post that material online.

The allegation was made in court papers filed last week by Ryan Burrage, a Louisiana man who is a defendant in one of the 100 lawsuits filed since March alleging copyrights to Review-Journal stories were infringed on when stories, or portions of stories, were displayed on websites throughout North America without authorization.

Like most defendants sued by Righthaven LLC, the Review-Journal's copyright enforcement partner, Burrage said in his response that neither the Review-Journal nor Righthaven sent him a cease and desist letter before suing him.

In its July 30 lawsuit against Burrage, filed in federal court in Las Vegas, Righthaven complained he "willfully copied" and displayed part of a May 25 column by Review-Journal Publisher Sherman Frederick about a watch list of "peeved travelers" maintained by the federal Transportation Security Administration.

As in most of the Righthaven lawsuits, the lawsuit demanded $75,000 in damages and forfeiture of Burrage's website domain name, www.jerryryburg.com.

Burrage, in his response, acknowledged republishing Frederick's column. He said the portion of the six-paragraph column that was displayed on his website -- four paragraphs with credit to and a link to the R-J -- was provided automatically through a syndication arrangement through Real Simple Syndication (RSS).

Burrage said the sources of the RSS feed were the websites www.infowars.com and prisonplanet.com.

Those websites are run by Austin, Texas, radio talk show host Alex Jones, who separately has been sued by Righthaven over the same Frederick TSA watch list column.

A least five Righthaven lawsuits have been filed over that column.

In responding to the suit against him, Burrage argued:

• "At no time was it the intent of the defendant to defraud, cause harm, misrepresent, intercept website traffic, profit or exploit the Las Vegas Review-Journal ... or its related stories."

• "Use of the article fell under the 'fair use' clause of copyright law."

• "Contrary to the plaintiff's claim (of harm), linking back to the original source is a form of promotion for the original source which improves, not harms, a website's ranking in search engines."

• The alleged infringement is "the equivalent of a passer-by stopping in front of a newsstand and reading the front page of the newspaper, without actually buying the newspaper."

• "Even if a defendant was to republish an article from the LVRJ.com website directly, he is not only within his rights to do so, but all users of LVRJ.com are encouraged to do just that. The LVRJ.com website offers and invites its users to 'Save and Share' all of its articles no less than 19 times per article. In addition, the LVRJ.com website encourages and invites its users to 'Email This,' 'Save This,' 'Print This' and subscribe to its 'RSS Feeds.' This not only puts the users of LVRJ.com in a quagmire, but it is the opinion of the defendant that LVRJ.com is guilty of entrapment, or at least setting up the users of LVRJ.com for a potential lawsuit. While the LVRJ.com encourages and invites its users to 'Share and Save' articles a total of 23 times per article, LVRJ.com will file a frivolous copyright infringement lawsuit against its users, if they follow LVRJ's directions and invitations to 'Share and Save' articles published on the website."

• "This lawsuit is entirely predatory, frivolous and an abuse of the United States justice system. While the defendant acknowledges that the plaintiff is not bound by law to issue a cease and desist letter when an alleged infringement is found, it is the common legal etiquette and process to begin with a cease and desist letter. Had such a cease and desist order been offered, the defendant would have cooperated and obliged accordingly. The opinion of the defendant is that in not issuing a cease and desist order prior to filing this lawsuit, the plaintiff's sudden filing of a lawsuit alleging copyright infringement is unethical, immoral, improper and indicates a suspicious motivation to do so. In addition ... the actions of the plaintiff are exactly what gives 'trial lawyers' a bad name."

• "Plaintiff is engaged in a shakedown or extortion operation, with the express purpose of abusing the legal system to extort or shake down webmasters and bloggers who republish content from the Las Vegas Review-Journal in accordance with 'fair use' and the Digital Millennium Copyright Act. In the majority of cases, including that of the defendant, victims of the plaintiff's witch hunt are bloggers and webmasters who generate very little revenue, if any, from their sites. ... The plaintiff is operating with expectation that the victims of his `copyright trolling' operation will settle out of court rather than absorb the costs of fighting this matter. "

Like many Righthaven defendants, Burrage denies his site targeted Nevada viewers. Burrage, who lives in Kenner, La., near New Orleans, asked that if the case proceeds it be transferred to New Orleans.

Burrage also offered to settle the dispute "without admitting any improper activities or malicious intent." He offered to settle for $10.87, his Google Adsense revenue during the nine-day period he says Righthaven may be able to assert its claim of infringement for.

Righthaven has not yet responded to the settlement offer or to Burrage's allegations about its lawsuit initiative.

Righthaven has denied it's running a shakedown campaign.

And while many defendants have complained that Righthaven failed to contact them before suing, Righthaven notes in court papers that those same defendants failed to call or e-mail the Review-Journal to seek permission to post the Review-Journal's content.

Righthaven, which says it was established to deter infringement and to profit by collecting damages for copyright infringement, also says it's not feasible to contact the thousands of alleged infringers of Review-Journal material.

Burrage is one of at least two defendants arguing recently that by encouraging users to share stories online, the Review-Journal is giving them consent to post their material online.

Attorneys for Jan Klerks of Chicago last week filed court papers saying that since the Review-Journal offered the story in Klerks' case to the world for free, encouraged people to save and send links to the story at no cost and without restriction and enabled readers to right click and copy the text of articles, it provided an "implied license."

"Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore is not an infringement," attorneys Michael McCue and Nikkya Williams of the Las Vegas office of the law firm Lewis and Roca LLP wrote in their filing.

An attorney for another Righthaven defendant, in the meantime, is seeking dismissal of a Righthaven suit based on the defendant's contention that the Nevada court doesn't have jurisdiction of the dispute since the defendant doesn't live in or do business in Nevada.

Southern California businessman Jeffrey L. Nelson has, since 2007, intermittently published news stories about the mortgage and real estate industries on his website, Nelson's response to the Righthaven lawsuit says.

"The intent of the website was to inform individuals and entities in the real estate/residential lending occupations of occurrences pertinent to those lines of work," Nelson's filing said. "Nelson did not solicit business through the website, nor did Nelson derive a profit from maintaining the website."

Nelson's filing says that on May 3, he posted part of a Review-Journal story about real estate on his site, but that co-defendants in the case had nothing to do with that posting.

He said that's because he went to work as a real estate agent for the co-defendants, South Coast Partners Inc. doing business as Keller Williams OC Coastal Realty in San Clemente, Calif.; and Keller Williams supervisor Robert Walter Hunt, after the story was posted.

"Defendants do not reside in Nevada, they hold no licenses in Nevada, they pay no taxes in Nevada, they conduct no business with Nevada residents or businesses and they do not actively solicit business from native Nevadans," said the filing by Nelson's attorney, Jason Wiley of the Henderson law firm Woods Erickson Whitaker & Maurice LLP.

Wiley also argued the 9th U.S. Circuit Court of Appeals has found "passive" websites don't create sufficient contacts with particular states to warrant jurisdiction by those states.

He said Nelson's website was passive as it didn't transact business over the Internet and there was no exchange of information involved -- it simply displayed information.

But Righthaven, in arguing for Nevada jurisdiction in a case involving a Texas defendant, has said the 9th Circuit has found "willful copyright infringers who reproduce content from a source known to exist in the forum purposefully avail themselves of said forum."

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