Copyright lawsuit defendant hits Righthaven with counterclaim

By Steve Green

Saturday, Feb. 26, 2011 | 2:05 a.m.

A group of South Carolina attorneys is putting up the stiffest resistance yet to a Righthaven LLC copyright infringement lawsuit, threatening Friday to press for sanctions against Las Vegas-based Righthaven and to hit it with a malicious prosecution claim.

Righthaven is a company that has filed at least 239 copyright infringement lawsuits since March over copyrights it obtained from the Las Vegas Review-Journal and the Denver Post.

The South Carolina attorneys filed a counterclaim Friday in Charleston, S.C., federal court against Righthaven that, among other things, accuses Righthaven of violating South Carolina’s Unfair Trade Practices Act when it sued Dana Eiser of Summerville, S.C., after a Denver Post column was posted on her nonprofit website .

Eiser is affiliated with a Tea Party movement group called Lowcountry 9/12 and has a blog at lowcountry912.wordpress.com.

The Sept. 23 column at issue by Post columnist Mike Rosen was called “A letter to the Tea Partyers.”

“Given that the Rosen letter was an open letter to ‘Tea Partyers,’ and given that Lowcountry 9/12 is aligned with the Tea Party movement, the Rosen letter was reprinted on Lowcountry 9/12’s blog the same day it was published in the Denver Post,” the counterclaim said.

“The Rosen letter on the Denver Post website encourages users to distribute the article by offering links to email the article and to share the article on more than 330 websites and social media outlets, including Facebook, Myspace, Digg, and Google Buzz using its ‘Bookmark & Share’ feature,” the counterclaim says, adding that the post on the Lowcountry blog attributed the column to Rosen and the Denver Post and linked back to the Post website.

The counterclaim noted Righthaven filed a copyright application for the Rosen column on Nov. 19, nearly two months after the column first appeared.

“Prior to filing the lawsuit, Righthaven LLC did not send a takedown notice nor any other request to remove the Rosen Letter from Lowcountry 9/12’s Blog to Ms. Eiser,” the counterclaim says.

“In most or all cases the (Righthaven) lawsuits are filed months after the alleged infringement occurs and without prior notice to the allegedly infringing website,” the counterclaim says. “Righthaven LLC does not generate any copyrightable content. Righthaven LLC does not employ writers, reporters, photographers, or in any way generate material other than lawsuits. Righthaven LLC is simply a business devoted to suing people, whose owners are simply investors in litigation over claims Righthaven LLC has no legitimate legally cognizable interest in.”

The counterclaim says: “Defendant hereby serves notice of an intention to move for sanctions for frivolous and improper behavior under (the Federal Rules of Civil Procedure) and to assert a malicious prosecution claim upon the termination of these proceedings in her favor.”

While previous counterclaims against Righthaven have accused the company of wrongdoing, this appears to be the first time a defendant’s attorneys have threatened to seek sanctions and assert a malicious prosecution claim.

In asserting a claim of abuse of process, Eiser’s attorneys charged: “Plaintiff has no interest in actually protecting a copyright or vindicating its legal rights, as evidenced by its only obtaining the right to prosecute a copyright after it identifies a target defendant, its only obtaining limited rights from the author to prosecute a claim for copyright infringement rather than full and unlimited rights, and its failure to send a takedown notice or other request that the allegedly infringing content be removed before filing suit.”

In alleging violations of the state unfair trade practices act, the attorneys wrote: “The actions complained of herein constitute unfair and deceptive acts. Such acts impact the public interest as Righthaven LLC has brought more than 239 claims for copyright infringement throughout the country and will undoubtedly be filing many more,” Eiser’s attorneys charged the counterclaim.

It said Eiser suffered damages under the act “arising from the negative impact on the defendant’s reputation and good name and that of the Lowcountry’s 9/12 blog after media reports have made Righthaven’s allegations that defendant is a copyright infringer well-known.”

The counterclaim also includes an allegation of “civil conspiracy” involving Righthaven and others yet to be identified

The counterclaim and Eiser’s answer include allegations previously leveled against Righthaven that are pending in Nevada’s federal court, including “barratry,” which the attorneys define as Righthaven lacking authority to assert copyright claims against Eiser; that Righthaven’s claims are barred by the First Amendment, that an “implied license” was provided by the Denver Post website for users to share its content, that use of the column on Eiser’s website was protected by fair use and that Righthaven has been involved in copyright misuse and fraud on the U.S. Copyright Office.

The answer and counterclaim request a jury trial and that Righthaven be held liable for unspecified sanctions, legal fees and damages including punitive and exemplary damages.

Eiser is represented in the litigation by attorneys J. Todd Kincannon, Jared Libet, Bill Connor and Thad Viers — at least three of whom have been active politically.

Kincannon has served as general counsel and executive director of the South Carolina Republican Party, Connor ran as a Republican for lieutenant governor last year and Viers has served as a Republican state legislator.

The Eiser case has already emerged as being troublesome for Righthaven, with University of North Dakota law professor Eric Johnson previously commenting that the posting of the column may have been protected by fair use because the column itself was styled as an open letter to Tea Partyers.

“A grassroots Tea Party affair, the blog makes a habit of reposting stories from the news media as it attempts to rally like-minded citizens to attend weekly meetings at an area church,” Johnson wrote. “What Lowcountry912 is doing is core First Amendment stuff. It involves not just political speech, but it also implicates freedom of association, the Bill of Rights stepsister of freedom of expression.”

Eiser’s attorneys added Friday: “The Rosen Letter is an open letter and therefore not copyrightable.”

Righthaven has not yet responded to Eiser’s answer and counterclaim.

Righthaven, which launched its lawsuit campaign in March 2010, has said the lawsuits are necessary to deter rampant online infringement of newspaper content and that the longstanding practice of the newspaper industry of issuing takedown notices to infringers has not been effective.

While many defendants have challenged Righthaven’s right to retroactively sue over the copyrights it obtains, several Nevada federal judges have upheld that right in denying preliminary motions to dismiss.

The only definitive ruling in the litigation campaign so far resulted in dismissal of a Righthaven suit on fair use grounds — a ruling Righthaven is appealing.

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In other Righthaven developments:

• A sixth counterclaim was filed against Righthaven, this one by Daniel Barham of Montreal and an entity called Urban Neighbourhood, both associated with the nonprofit website urbanneighbourhood.com. They were sued after a Review-Journal “Vdara death ray” graphic was posted on their website.

“The Las Vegas Review-Journal and Righthaven LLC gave implied permission and license by listing at the time of the alleged infringement quick links for 19 different ways to copy or share the works on websites external to the Review-Journal,” says his counterclaim, which asserts a fair use defense and claims Righthaven’s business model involves “lawsuits against individuals and small entities using the threats of statutory damages, domain name seizures and attorney fees to force settlements, even when, as in this case, the defendant has not infringed the copyright.”

• Former Righthaven defendant Nathan Muller, whom Righthaven has acknowledged was mistakenly sued based on incorrect information that he owned a website, is offering his services as an Internet expert to help people facing copyright infringement claims. He’s launched a website called thewebdefender.com.

“Domain name records alone are no longer an accurate way to determine website ownership. The Internet has progressed beyond that. Righthaven does not want that story told because it will increase their costs of bringing about complaints if the judicial system insists that they go the extra step to prove website ownership,” Muller said.

• Righthaven reached confidential settlements with additional lawsuit defendants. The latest cases to be closed involved defendants Mr. News Breaker and Ian Howells; and Associated Newspapers Ltd.