Looking at the docket, the last entry yesterday was:
"PROPOSED SUMMONS to be issued to Stephens Media LLC, filed by Counter Claimant Democratic Underground, LLC. (Opsahl, Kurt) (Entered: 09/29/2010)"
The proposed summons is just a standard, fill-in-the-blank summons. I'm really curious what's going to happen once Stephens Media shows up. Surely they're going to start out arguing that they're not a party to this case. I'm inclined to think the judge will agree.
Righthaven only has to issue a takedown notice if the infringing material is posted on a website that has set themselves up with a registered DMCA agent to receive takedown notices. As far as I know, Righthaven is only targeting websites that haven't registered a DMCA agent, so there's no requirement to issue a takedown notice.
And as Mike pointed out above, takedown notices are only appropriate where a user of the website has posted the material. If the owner of the website posted the material themselves, then there's no requirement to issue a takedown notice even if they have a registered DMCA agent.
Good point. They're trying to bring in Stephens Media, but I don't know if it's going to work though. The judge may not think that they're really a party to this. I think it's a bit of a stretch.
As I read the headlines and news reports about this I think I understand the counterclaim: It's just for PR. EFF is trying this in the court of public opinion. They're getting headlines, like techdirt's above, saying that they are suing Righthaven back. And technically that's true. I haven't seen anyone picking up on the fact that the counterclaim isn't asking for anything different than what their defense is already asking for. Ah, details...
Defendants assert the following defenses, without regard to whether they are “affirmative” defenses or matters as to which the Plaintiff has the burden of proof.
1. Plaintiff’s Complaint, and each cause of action within it, fails to state a cause of action.
2. Process has been insufficient.
3. Service of process has been insufficient.
4. This court lacks personal jurisdiction over Defendants.
5. This court is not a proper venue for this action.
6. Plaintiff’s claims are barred by its failure to join indispensable parties.
7. Plaintiff’s claims are barred by the doctrine of fair use.
8. Plaintiff’s claims are barred by the First Amendment to the United States Constitution.
9. Plaintiff’s claims are barred by consent, waiver, acquiescence, license, and estoppel.
10. Plaintiff’s claims are barred by its failure to mitigate damages.
11. Plaintiff’s claims are barred by the equitable doctrine that the law does not concern itself with trivial matters (commonly known as de minimis non curat lex).
12. Plaintiff’s claims are barred by laches.
13. Plaintiff’s claims are barred by the doctrine of unclean hands.
14. Plaintiff’s claims are barred to the extent any persons, based on whose behavior Plaintiff seeks to hold Defendants liable, are innocent infringers.
15. Plaintiff’s claims are barred due to copyright misuse.
16. Plaintiff’s claims are barred to the extent it has caused fraud upon the Copyright Office.
17. Plaintiff’s claims are barred to the extent it has forfeited or abandoned copyright.
18. Plaintiff’s claims are barred because Plaintiff is engaging in barratry, champerty, and maintenance.
19. Plaintiff’s claims for statutory damages are barred or limited by the United States Constitution.
20. Plaintiff’s claims are barred because Plaintiff lacks standing.
**********
It's not everyday you see someone bring up laches, barratry, and champerty. LOL! Clearly they're going with the "throw the whole book at 'em" defense strategy.
It's kind of a silly list though, since most of those defenses don't even have a chance of winning. The answer sketches out the arguments for some of the defenses, but it's silent for the others. That's not too surprising since the arguments aren't really sussed out at this stage of things. I look forward to seeing their arguments in more detail if things get to the point where they make them. I suspect that if this makes it to trial, that list will be a lot shorter at that time.
I think that clearly the best defense here is fair use. I suspect EFF got involved in this case because it's one of only two or three where the infringement involved less than the whole lvrj.com article. Not copying the whole article really helps out when arguing fair use.
I'm a little confused though about exactly what the counterclaim strategy is. Apparently their entire counterclaim is for a "Declaration of No Copyright Infringement." Huh? I've never heard of anyone counterclaiming for a declaratory judgment that their use is not infringing. This doesn't make sense to me since their defense is that their use is not infringing. If you're already asking the court to declare that your use is not infringing as your defense, what's the need for a counterclaim for the same declaration? Perhaps they have a strategy, but to me it doesn't make sense.
The share features they have only let you share a link to the original article on the lvrj.com website, not the text of the article itself. There's a big difference. Not surprisingly, this difference was left out of the Answer/Counterclaim. I'm sure Righthaven will harp on it in their response.
If someone wanted to be really evil, hypothetically speaking of course, they could do something like this: Write a silly poem about Righthaven and then post it on some poetry site where anyone can see it. Anonymously log in to lvrj.com and post the poem in their comments section. Register your poem with the copyright office and then sue lvrj.com for $150,000. Demand their domain name too for good measure.
Heck, if someone found their work infringed on lvrj.com, I might even buy the rights from them, register it, and then file suit myself. I heard you can make good money that way. :)
An interesting tidbit from Answer/Counterclaim was that lvrj.com does not appear to have a designated DMCA agent. They can't be that dumb, can they? I looked on the copyright.gov website and couldn't find a listed agent. I checked under lvrj.com, stephensmedia.com, and reviewjournal.com. Maybe I'm missing it, but I don't think it's there.
It would be all too easy for someone to post infringing material on their website and then sue them for infringement. Given how many people they're pissing off, this seems all but assured. They're not that dumb, are they?
This is a great result. I hope it stands up on appeal--if they even appeal it. It's kind of surprising that the judge was breaking new ground in Maryland with this decision. You'd think the courts would have already dealt with this issue, but apparently they hadn't. Score one for the good guys.
He names "Tara Ann Buck" in the complaint like he's sure it's her. And he is holding Google responsible as well. It's all right there in the complaint.
If all you wanted from Google was for them to turn over information about the commenter, you wouldn't sue Google too. You'd simply subpoena them.
You would sue the person who posted the defamatory comments as a Doe defendant, and then you'd get leave of the court to subpoena Google to turn over the commenter's identifying information.
In this case though, he knows who posted the comments. He is suing the commenter and Google.
I read through that Plaintiff's Opposition to Motions to Dismiss, and that quote you're pointing to is taken from the http://whatismyipaddress.com/ website.
Similarly here, the moving Doe Defendants have not established that their techniques conclusively establish the location of any particular Doe Defendant. In fact, the website cited in the omnibus motion http://whatismyipaddress.com/) provides the following disclaimer when a user clicks on Additional IP Details: This information should not be used for emergency purposes, trying to find someones exact physical address, or other purposes that would require 100% accuracy. (emphasis added). Additionally, that very same website has a page dedicated How accurate is GeoLocation? which states: Determining the physical location down to a city or ZIP code, however, is more difficult and less accurate because there is no official source for the information, users sometimes share IP addresses and Internet service providers often base IP addresses in a city where the company is basing operations. Accuracy rates on deriving a city from an IP address fluctuate between 50 and 80 percent, according to DNS Stuff, a Massachusetts-based DNS and networking tools firm. See http://whatismyipaddress.com/geolocation-accuracy.
All they are saying is that it doesn't make sense for the plaintiff to use the IP addresses to try and guess the defendants' jurisdictions before filing since the IP addresses are not 100% accurate. The very website the defendants' counsel said plaintiff could have used has a warning about how inaccurate it is. The part about users sharing IP addresses is of no help to defendants at this point of the proceedings. That sort of information could be helpful later when the defendants get to mount their defense, but for now it gets them nothing.
I think more importantly, Plaintiff's Opposition explains why these motions to dismiss are all going to fail. Any one reason listed is sufficient to deny these motions. Just like the judge has been denying all of the other motions, she will now be denying all of these motions to dismiss. The simple fact is that at this point of the proceedings, the motions to dismiss are premature. Read Plaintiff's Opposition for all the reasons why.
Let's review what's happened:
(1) Improper Joinder: EFF and others argued that the defendants should be severed or dismissed for misjoinder. USCG wrote a memo showing cause why they shouldn't be severed or dismissed and the judge agreed. All motions arguing misjoinder are denied.
(2) Motions to Quash: Several defendants bought the DIY motion to quash from Affinity Law and filed them. Other defendants joined into an omnibus motion written by a group of lawyers. All of these motions to quash argued jurisdiction which is a non-starter. The whole point of discovery is to determine jurisdiction. All motions to quash are denied.
(3) Motions for Protective Order: Several defendants also moved to proceed anonymously. The judge says that none of the defendants have a cognizable claim of privacy. All motions for protective order are denied.
(4) Motions to Dismiss: Several defendants have moved to dismiss based on lack of personal jurisdiction. The judge has not yet ruled on any of these motions, but local rules dictate that USCG file a response within a short period of time, which they did. I linked to USCG's response above. My prediction is that the judge will deny all of the motions to dismiss either this week or next.
It's really obvious that the defendants are just trying to get out of having their information revealed to USCG by their ISP. The simple reality is that there's no way to stop it.
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re: Re: Re:
"PROPOSED SUMMONS to be issued to Stephens Media LLC, filed by Counter Claimant Democratic Underground, LLC. (Opsahl, Kurt) (Entered: 09/29/2010)"
The proposed summons is just a standard, fill-in-the-blank summons. I'm really curious what's going to happen once Stephens Media shows up. Surely they're going to start out arguing that they're not a party to this case. I'm inclined to think the judge will agree.
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re: DMCA
And as Mike pointed out above, takedown notices are only appropriate where a user of the website has posted the material. If the owner of the website posted the material themselves, then there's no requirement to issue a takedown notice even if they have a registered DMCA agent.
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re: Re: Re:
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re:
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
**********
DEFENSES
Defendants assert the following defenses, without regard to whether they are “affirmative” defenses or matters as to which the Plaintiff has the burden of proof.
1. Plaintiff’s Complaint, and each cause of action within it, fails to state a cause of action.
2. Process has been insufficient.
3. Service of process has been insufficient.
4. This court lacks personal jurisdiction over Defendants.
5. This court is not a proper venue for this action.
6. Plaintiff’s claims are barred by its failure to join indispensable parties.
7. Plaintiff’s claims are barred by the doctrine of fair use.
8. Plaintiff’s claims are barred by the First Amendment to the United States Constitution.
9. Plaintiff’s claims are barred by consent, waiver, acquiescence, license, and estoppel.
10. Plaintiff’s claims are barred by its failure to mitigate damages.
11. Plaintiff’s claims are barred by the equitable doctrine that the law does not concern itself with trivial matters (commonly known as de minimis non curat lex).
12. Plaintiff’s claims are barred by laches.
13. Plaintiff’s claims are barred by the doctrine of unclean hands.
14. Plaintiff’s claims are barred to the extent any persons, based on whose behavior Plaintiff seeks to hold Defendants liable, are innocent infringers.
15. Plaintiff’s claims are barred due to copyright misuse.
16. Plaintiff’s claims are barred to the extent it has caused fraud upon the Copyright Office.
17. Plaintiff’s claims are barred to the extent it has forfeited or abandoned copyright.
18. Plaintiff’s claims are barred because Plaintiff is engaging in barratry, champerty, and maintenance.
19. Plaintiff’s claims for statutory damages are barred or limited by the United States Constitution.
20. Plaintiff’s claims are barred because Plaintiff lacks standing.
**********
It's not everyday you see someone bring up laches, barratry, and champerty. LOL! Clearly they're going with the "throw the whole book at 'em" defense strategy.
It's kind of a silly list though, since most of those defenses don't even have a chance of winning. The answer sketches out the arguments for some of the defenses, but it's silent for the others. That's not too surprising since the arguments aren't really sussed out at this stage of things. I look forward to seeing their arguments in more detail if things get to the point where they make them. I suspect that if this makes it to trial, that list will be a lot shorter at that time.
I think that clearly the best defense here is fair use. I suspect EFF got involved in this case because it's one of only two or three where the infringement involved less than the whole lvrj.com article. Not copying the whole article really helps out when arguing fair use.
I'm a little confused though about exactly what the counterclaim strategy is. Apparently their entire counterclaim is for a "Declaration of No Copyright Infringement." Huh? I've never heard of anyone counterclaiming for a declaratory judgment that their use is not infringing. This doesn't make sense to me since their defense is that their use is not infringing. If you're already asking the court to declare that your use is not infringing as your defense, what's the need for a counterclaim for the same declaration? Perhaps they have a strategy, but to me it doesn't make sense.
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re:
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
Re: Re: Re:
Heck, if someone found their work infringed on lvrj.com, I might even buy the rights from them, register it, and then file suit myself. I heard you can make good money that way. :)
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
It would be all too easy for someone to post infringing material on their website and then sue them for infringement. Given how many people they're pissing off, this seems all but assured. They're not that dumb, are they?
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On the post: More Stories Of People Arrested For Making Joke Threats On Social Networks
Re: Re: Good Job NYPD
On the post: More Stories Of People Arrested For Making Joke Threats On Social Networks
Re: Re: Re: Good Job NYPD
On the post: Judge Tosses Out Wiretapping Charges Against Motorcyclist Who Filmed Cop With Helmet Cam
On the post: More Stories Of People Arrested For Making Joke Threats On Social Networks
Re: Good Job NYPD
It's not much in the way of deterrence if someone who threatens to murder people, joking or not, just gets away with it.
I say lock him up. I suspect prison won't seem so funny to him.
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On the post: Microsoft Back To Trying To Bribe People To Use Bing
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On the post: Microsoft Back To Trying To Bribe People To Use Bing
Re: Bing vs Google
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Re: News flash: Microsoft monetizes "free", Mike complains
On the post: Law Student Sues Google Over Allegedly Defamatory Blog Posts
Re: Re: Re: read the complaint
If all you wanted from Google was for them to turn over information about the commenter, you wouldn't sue Google too. You'd simply subpoena them.
On the post: Law Student Sues Google Over Allegedly Defamatory Blog Posts
Re: read the complaint
In this case though, he knows who posted the comments. He is suing the commenter and Google.
Did you read the complaint? ;)
On the post: Lawyer Tries Selling DIY Legal Response Kit For Those Hit By US Copyright Group Suits
Re:
Plaintiff's Opposition: http://www.scribd.com/full/38152403?access_key=key-20ldzba56a26m0ubegoy
Look at the whole quote:
All they are saying is that it doesn't make sense for the plaintiff to use the IP addresses to try and guess the defendants' jurisdictions before filing since the IP addresses are not 100% accurate. The very website the defendants' counsel said plaintiff could have used has a warning about how inaccurate it is. The part about users sharing IP addresses is of no help to defendants at this point of the proceedings. That sort of information could be helpful later when the defendants get to mount their defense, but for now it gets them nothing.
I think more importantly, Plaintiff's Opposition explains why these motions to dismiss are all going to fail. Any one reason listed is sufficient to deny these motions. Just like the judge has been denying all of the other motions, she will now be denying all of these motions to dismiss. The simple fact is that at this point of the proceedings, the motions to dismiss are premature. Read Plaintiff's Opposition for all the reasons why.
Let's review what's happened:
(1) Improper Joinder: EFF and others argued that the defendants should be severed or dismissed for misjoinder. USCG wrote a memo showing cause why they shouldn't be severed or dismissed and the judge agreed. All motions arguing misjoinder are denied.
(2) Motions to Quash: Several defendants bought the DIY motion to quash from Affinity Law and filed them. Other defendants joined into an omnibus motion written by a group of lawyers. All of these motions to quash argued jurisdiction which is a non-starter. The whole point of discovery is to determine jurisdiction. All motions to quash are denied.
(3) Motions for Protective Order: Several defendants also moved to proceed anonymously. The judge says that none of the defendants have a cognizable claim of privacy. All motions for protective order are denied.
(4) Motions to Dismiss: Several defendants have moved to dismiss based on lack of personal jurisdiction. The judge has not yet ruled on any of these motions, but local rules dictate that USCG file a response within a short period of time, which they did. I linked to USCG's response above. My prediction is that the judge will deny all of the motions to dismiss either this week or next.
It's really obvious that the defendants are just trying to get out of having their information revealed to USCG by their ISP. The simple reality is that there's no way to stop it.
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