Broadband Reports Hit By Righthaven; Goes With Kitchen Sink Approach In Response

from the questions,-questions,-questions dept

Mon, Sep 13th 2010 3:16pm — Mike Masnick

We've been covering the various stories of Righthaven lawsuits for months now, and one of the latest involves a site that we link to frequently here on Techdirt. The always excellent BroadbandReports.com has been sued by Righthaven after a forum user posted an LVRJ story. The article highlights the long list of defenses that the site is putting up against Righthaven, many of which we've seen from other Righthaven defendants, such as Nevada being the inappropriate venue and that Righthaven offers up an "implied license," with its encouragement to share.

That said, reading between the lines of the responses, it certainly looks like the site had not registered with the Copyright Office to get DMCA safe harbors. In fact, so far as I can tell, while Righthaven has sued multiples sites that involved forums where the content was posted by a third party, the company has been careful to only sue those without a registered DMCA agent. I'd be curious if there were any examples to the contrary, as I've yet to find one. So, first, a quick public service announcement: if you run any sort of site that allows public participation -- blogs, forums, whatever -- register with the copyright office for DMCA protection. Do it now. Seriously. It can protect you from this kind of headache.

That said, I think it's quite an interesting question if a site still deserves protection from liability for third party comments even if they have not registered. I think a very strong case could certainly be made that such protections remain, though it might involve more of a process to have the court recognize this. First, you have the common sense point: which is that it makes little sense to pin liability on a third party tool or service provider that has no idea that a potentially law-breaking action has been taken. Second, the case law in trademarks, where there is no safe harbor as there is in copyright, has found that such service providers are protected anyway. I would think the various wins that eBay has had over Tiffany would be incredibly relevant case law for showing that even absent a registered DMCA agent, a site like BroadbandReports still should not get third party liability for comments of users.

Another argument that I find compelling is the fact that Righthaven made absolutely no effort to mitigate "damages" by first asking the site to remove the content. While Righthaven legally can go straight to suing, courts tend not to look kindly on companies that fail to take basic actions that could mitigate damages even without a lawsuit.

The final interesting defense is a claim of "copyright misuse," which is a tremendous longshot, but it would be a huge win if the court accepted it, and would more or less represent the end of Righthaven. If you're unfamiliar with it, copyright misuse is a defense against a charge of copyright infringement, when it's believed that the copyright holder was abusive or improper in filing the lawsuit. I doubt the court would accept this, though I think the claim actually makes quite a lot of sense. It's been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees. It would be great if the court smacked them down on a copyright misuse claim, but my guess is that many judges will be afraid to go that far.

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Filed Under: copyright, copyright misuse, dmca, lawsuits, safe harbors, third party liability
Companies: broadband reports, las vegas review journal, righthaven, stephens media

37 Comments

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TDR, 13 Sep 2010 @ 3:34pm

So why haven't hasn't the MAFIAA been hit with any copyright misuse claims yet? They certainly deserve it and are guilty of it, a million times over.
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- Jay (profile), 13 Sep 2010 @ 3:36pm
  
  Re:
  They stopped their Sue-Em-All strategy around 2008. Their strategy now consists of implementing the 3 strikes law against file sharers and impeding businesses such as Grooveshark in the most inconvenient way possible.
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  - TDR, 13 Sep 2010 @ 3:39pm
    
    Re: Re:
    Still sounds like copyright misuse to me. Hopefully someone will hit them with it and it'll stick.
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NAMELESS.ONE, 13 Sep 2010 @ 4:22pm

if that site's related to dslreports.com
they can get bent awful admins and mods.....
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- Anonymous Coward, 13 Sep 2010 @ 5:16pm
  
  Re: if that site's related to dslreports.com
  Did they ban you for violating their rule against non-human languages?
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Anon, 13 Sep 2010 @ 5:24pm

Hmm.
Does this mean I can attack websites i don't like with LVRJ links and stories?
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abc gum, 13 Sep 2010 @ 5:32pm

Does WrongHaven have a website forum I can post to ?
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- KnownHuman (profile), 14 Sep 2010 @ 6:26am
  
  Re:
  That's actually an interesting theory. RightHaven's brazen, even bullheaded, tactics seem like they'd be fairly easy to steer for personal gain.
  
  Through focusing purely on second-hand liability, a small group could harness RightHaven's legal team to bully websites said group disagrees with. A modest campaign of copying and pasting could almost guarantee legal action. A court-battle by proxy with (at this point) no foreseeable action against the actual "infringing" entity.
  
  Talk about a combat multiplier.
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average_joe (profile), 13 Sep 2010 @ 6:38pm

The final interesting defense is a claim of "copyright misuse," which is a tremendous longshot, but it would be a huge win if the court accepted it, and would more or less represent the end of Righthaven. If you're unfamiliar with it, copyright misuse is a defense against a charge of copyright infringement, when it's believed that the copyright holder was abusive or improper in filing the lawsuit. I doubt the court would accept this, though I think the claim actually makes quite a lot of sense. It's been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees. It would be great if the court smacked them down on a copyright misuse claim, but my guess is that many judges will be afraid to go that far.

I don't think that's how a defense of copyright misuse works.

From the defendant's answer: Plaintiff's Complaint is barred due to the doctrine of Copyright Misuse. Among other things, Plaintiff is not seeking to protect its copyright or to stop infringing activity. It did so to obtain money in excess of the fair and reasonable value of the claimed infringement and to get compensation for its needless and punitive expenditure of legal and filing fees.

That's not right either.

I'll research some authority on this and post it.

In general though, copyright misuse is a defense to infringement. The misuse has to be happening when the infringement happens. The misuse claimed here happened after the infringement, so it makes no sense.
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- average_joe (profile), 13 Sep 2010 @ 7:18pm
  
  Re:
  Well, apparently I'm wrong. It means what I thought it meant, but it means other things to:
  
  Where a copyright misuse defense is based entirely on the misuser's filing of an infringement suit, it has been observed that the defense would not be appropriate where the court could not conclude that holder's claims were "objectively meritless." 185 A.L.R. Fed. 123
  
  I'll read some case law to get more, but it sounds like you'd have to show the plaintiff's case was "objectively meritless" to make your defense. This doesn't seem possible in the Righthaven cases since infringement seems to be a given and the plaintiff's case is anything but meritless.
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  - nasch (profile), 13 Sep 2010 @ 10:18pm
    
    Re: Re:
    If everyone in the case agrees that the party being sued isn't the one who infringed the copyright, that would certainly seem to be a candidate for the "objectively meritless" label. I don't know for sure, but it sounds like Righthaven knows Broadband Reports didn't post the infringing material, Broadband Reports certainly knows it, and I assume the judge will soon know it if he doesn't already. Not that that will necessarily get the case tossed, copyright law is so f-ed up these days.
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    - Michael, 14 Sep 2010 @ 4:42am
      
      Re: Re: Re:
      But that is the problem with the current laws (and current case law). It is unclear if Broadband Reports has infringed. Common sense tells us to blame the person who posted rather than the tool provider, but with case law still unclear, it is "reasonable" for Righthaven to believe Broadband Reports could actually lose this case.
      
      It's stupid, but our laws are so unclear right now about what is infringement and who is responsible that it is really hard for a judge to say anyone should be able to tell without a court making the decision.
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      - average_joe (profile), 14 Sep 2010 @ 6:37am
        
        Re: Re: Re: Re:
        Right. A case is meritorious and not frivolous if there is a good faith argument for extension, modification, or reversal of existing law. I'm pretty sure the fact that the infringing material was posted on the defendant's site, even if by third-parties, makes the case meritorious on its face which is all that is necessary.
        
        A case is not frivolous merely because the facts have not been first fully substantiated or because the lawyer expects to develop vital evidence only by discovery. It's not even frivolous even though the lawyer believes that the clients position ultimately will not prevail. It's only frivolous if the lawyer is unable to make good faith arguments on the merits.
        
        The standard for a case to be frivolous is pretty low.
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    - average_joe (profile), 14 Sep 2010 @ 5:35am
      
      Re: Re: Re:
      I think it's some kind of vicarious or contributory liability theory. I'll look it up and let you know what I find.
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  - Mike Masnick (profile), 13 Sep 2010 @ 11:58pm
    
    Re: Re:
    This doesn't seem possible in the Righthaven cases since infringement seems to be a given and the plaintiff's case is anything but meritless.
    
    I'm curious about that statement. You believe that there is merit in suing the service provider over actions of a user? Could you explain?
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    - average_joe (profile), 14 Sep 2010 @ 5:34am
      
      Re: Re: Re:
      I just assumed it was some kind of contributory or vicarious liability. I'll do some research on that and see what I come up with and get back to you. Good question.
      
      As far as the plaintiff's lawsuit itself being the copyright misuse, there isn't much caselaw on point. I did find a case in the Ninth Circuit that indicates copyright misuse is available as a defense, so that would apply in the Righthaven cases which are in the Ninth Circuit. The Supreme Court has never ruled either way on it, and some circuits don't recognize the defense.
      
      In the digest I was reading last night (A.L.R.) there were about 50 cases of misuse that were like what I thought it was (involving licenses, antitrust, non-competes, etc.) and only one case where the lawsuit itself was the misuse. I had never heard of the lawsuit itself being the misuse, but there it is.
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    - average_joe (profile), 14 Sep 2010 @ 7:19am
      
      Re: Re: Re:
      Looking at the complaint, it appears Righthaven is saying it's both direct and indirect infringement.
      
      For direct infringement, the plaintiff must satisfy two requirements for a prima facie case: (1) they must show ownership of the allegedly infringed material, and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders.
      
      In the complaint, Righthaven indicates that they have ownership of the material in question, and they allege that the defendants "willfully copied, on an unauthorized basis, the Work" and that they "displayed, and continue to display, an unauthorized reproduction of the Work."
      
      So they're arguing direct infringement.
      
      For contributory infringement the standard is: One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a contributory copyright infringer; liability exists if the defendant engages in personal conduct that encourages or assists the infringement.
      
      In the complaint, they say the defendants "knew, or reasonably should have known, that websites, such as the Website, are and were at all times relevant to this lawsuit, the habitual subject of postings by others of copyright-infringing content." In other words, the defendants knew or should have known that users were making postings. And then they go on to say that the Website didn't have any proactive policy of precluding, monitoring, or deleting infringing content. This "failure to institute any proactive policies intended to address the posting by others of copyright-infringing content on the Website constituted and constitutes the Defendants’ willful blindness to copyright infringements occurring on the Website."
      
      So they're arguing secondary liability as well.
      
      It's not the clearest complaint I've ever read, but it's clear enough that they're alleging direct and indirect liability.
      
      As to whether or not the complaint is "objectively meritless" see my post above about meritorious suits--the bar is set pretty low. It's only frivolous if the plaintiff cannot make good faith arguments on the merits. I don't believe that to be the case here.
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ofb2632 (profile), 13 Sep 2010 @ 8:20pm

Entrapment
Actually, i think a counter-sue of entrapment should be in order. When a website freely offers a share button, but then sues anyone that uses it.... i think counter-suing for damages is very appropriate
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- nasch (profile), 13 Sep 2010 @ 10:22pm
  
  Re: Entrapment
  It's not entrapment. As MacDougal says in the movie of that name, "Entrapment is what cops do to theives", the critical word being "cops". Only law enforcement officers or other government agents can be guilty of entrapment.
  
  http://en.wikipedia.org/wiki/Entrapment
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  - abc gum, 14 Sep 2010 @ 4:41am
    
    Re: Re: Entrapment
    "Only law enforcement officers or other government agents can be guilty of entrapment."
    
    When done by business, it's called good business practice or innovative marketing.
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Anonymous Coward, 14 Sep 2010 @ 6:49am

Copyright Misuse on Wikipedia
http://en.wikipedia.org/wiki/Copyright_misuse

And people laugh at Wikipedia LoL

Wikipedia list at least 3 instances where copyright misuse was used.

Some more sources:
http://digital-law-online.info/lpdi1.0/treatise15.html
http://www.techlawjournal.com/tops tories/2003/20030826.asp
http://docs.google.com/viewer?a=v&q=cache:CLSilbKF-F8J:www.sfipla.com/ 2-21-08_Copyright_Misuse.pdf+copyright+misuse&hl=en&gl=us&pid=bl&srcid=ADGEESh3xwdtO meDUlBSl3AyO6MY86_GugCsRv8nQmzx_TLDBBLMnxysxEKasuqIXy42PCfL7nz-pfE2NuQu7i0xvLKZL9V0-GuODIMxWmzok4YxO al-zEyilim3ocfHiSTMRwmO_w8a&sig=AHIEtbRwjqsrF8nanXpjlYF3EBcajsMMFQ

Quotes:

Similarly, in Brulotte v. Thys Co., 379 U.S. 29 (1964), the Supreme Court held that a patent holder's attempt to collect royalties beyond the term of the patent constitutes misuse of the patent

Holding in Video Pipeline. The Court noted that misuse "exists where the patent or copyright holder has engaged in some form of anti-competitive behavior." But, it went on to state that "More on point, however, is the underlying policy rationale for the misuse doctrine set out in the Constitution's Copyright and Patent Clause ... Put simply, our Constitution emphasizes the purpose and value of copyrights and patents. Harm caused by their misuse undermines their usefulness."

Source:
http://www.techlawjournal.com/topstories/2003/20030826.asp

- If the copyright scope was expanded copyright misuse can be valid.
- If copyright is being used to hinder criticism, copyright misuse can be used.
- If copyright is being used to anti-competitive behavior, copyright misuse also can be used.

Those are not the only defenses used but are the most suscessuful ones to date.

So I think if DSLReports can prove that the behavior of Righthaven is affecting its ability to be critical of Righthaven clients they have a good chance of making the cut.

Copyright misuse was upheld on the 3rd and 9th circuits.
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Bob, 14 Sep 2010 @ 7:03am

Throttle down the superlatives bub
It's been quite clear from the beginning that Righthaven has no interest, whatsoever, in using copyright law for its intended purpose, but is merely twisting the system to force companies to pay up settlement fees.

Uh, correct me if I'm wrong, but there are folks who infringe and Rightshaven is suing them and putting some money in the hands of the real creators. You may not like that they can do this. You may think that the rules for fair use should be broader or they should apply, but it sure seems to me like they're using copyright law for its intended purpose: creating a temporary monopoly for the artists.
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- TDR, 14 Sep 2010 @ 7:19am
  
  Re: Throttle down the superlatives bub
  Show us your documented non-industry evidence that any of the money is going to the creators, Bob. Otherwise you're wrong.
  
  Also, does anyone know if it's possible to countersue not for monetary damages but instead to have the opposing group shut down? Because that's something BR might want to try against Righthaven if possible. Go for the throat, in other words.
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  - Bob, 14 Sep 2010 @ 2:36pm
    
    Re: Re: Throttle down the superlatives bub
    Rightshaven signed a contract with the owners of the copyright. Money goes to the owners. What planet are you from? Do you think they could just sue people for fun with no standing?
    
    And if you're going to go for the tired old idea that the money will only go to the newspapers, not the individual reporters, give up. The newspapers will have more money to pay reporters. And the original ones were paid in advance.
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- average_joe (profile), 14 Sep 2010 @ 7:23am
  
  Re: Throttle down the superlatives bub
  And don't forget that another purpose of the suits is to deter future would-be infringers from infringing on LVRJ's works. I think it's arguable that they are succeeding in that department.
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- Anonymous Coward, 14 Sep 2010 @ 9:07am
  
  Re: Throttle down the superlatives bub
  Except of course that they have no interest in actually stopping the infringement from occurring (until after they can get money out of it).
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  - average_joe (profile), 14 Sep 2010 @ 9:17am
    
    Re: Re: Throttle down the superlatives bub
    They're asking the court to enjoin the defendants from infringing on their works, so I don't really follow how anyone thinks they don't want to stop the infringement.
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    - nasch (profile), 14 Sep 2010 @ 1:25pm
      
      Re: Re: Re: Throttle down the superlatives bub
      Wow, seriously? How have you missed that? This is a revenue stream. They are doing this for the money, not because they care about the copyright violation. LVRJ encourages people to share their articles and then Righthaven sues websites when they do.
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      - average_joe (profile), 14 Sep 2010 @ 3:16pm
        
        Re: Re: Re: Re: Throttle down the superlatives bub
        LVRJ encourages people to share links to their articles, not the articles themselves. Part of this is about collecting money from infringers, but it's about deterrence too.
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    - Anonymous Coward, 14 Sep 2010 @ 6:15pm
      
      Re: Re: Re: Throttle down the superlatives bub
      If they wanted to stop the infringement, they would be pursuing methods available that require less time and less money than the mass filing of lawsuits.
      
      But you knew that already, and are just playing dumb.
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      - average_joe (profile), 14 Sep 2010 @ 6:32pm
        
        Re: Re: Re: Re: Throttle down the superlatives bub
        Would you post an entire LVRJ article online? I sure as heck wouldn't.
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        Anonymous Coward, 14 Sep 2010 @ 6:44pm
        
        Re: Re: Re: Re: Re: Throttle down the superlatives bub
        And yet, that still has nothing to do with the fact that Righthaven's motive is to make money, not stop infringement.
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        average_joe (profile), 14 Sep 2010 @ 6:54pm
        
        Re: Re: Re: Re: Re: Re: Throttle down the superlatives bub
        You can't possibly actually know what all of their motives are, but if you insist that you really know the deep down truth, then good for you. I know you're just making it up, no matter what you say.
        
        Nevertheless, they said part of it is deterrence, and I think it's arguable that it's working.
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        Anonymous Coward, 14 Sep 2010 @ 8:58pm
        
        Re: Re: Re: Re: Re: Re: Re: Throttle down the superlatives bub
        Their motive is displayed by the facts, not my opinions. If they were interested in stopping copyright infringement, they would be pursuing the methods available that could stop copyright infringement within days. They are not pursuing those options (at all, ever), because those methods do not involve the extraction of settlement money.
        
        Feel free to keep denying the obvious. It is good practice for your future career, after all.
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        nasch (profile), 15 Sep 2010 @ 7:45am
        
        Re: Re: Re: Re: Re: Throttle down the superlatives bub
        At this point I would go out of my way to avoid even reading anything from LVRJ, let alone posting it. So yeah, the lawsuits are having an effect all right.
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Anonymous Coward, 15 Sep 2010 @ 3:10am

I didn't know one needed to register
I'll also bet that lots of others don't know about this need to register for safe harbor protections either.
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Anonymous Coward, 15 Sep 2010 @ 4:21am

Does anyone know if the "register with the copyright office for DMCA protection" part applies differently to Canadian-run sites hosted in the U.S.?
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