Righthaven denies defaming copyright defendant

Las Vegas copyright lawsuit filer Righthaven LLC is denying charges that CEO Steven Gibson defamed a Righthaven defendant when he said the firm’s lawsuits target "a community of thieves."

Righthaven since March 2010 has filed 275 no-warning lawsuits against websites, bloggers and message board posters alleging copyright infringement involving Las Vegas Review-Journal and Denver Post material.

The litigation campaign has been stalled this summer by court rulings finding Righthaven lacked standing to sue over Review-Journal material because of what critics call "sham" copyright assignments that left the R-J in control of the material Righthaven claimed to own and had sued over.

Judges have not yet ruled on similar challenges to Righthaven’s lawsuits over Denver Post material in Colorado and South Carolina.

But in the company’s lone South Carolina case, an attorney for Righthaven filed papers Thursday asking the court to dismiss a counterclaim filed against Righthaven by defendant Dana Eiser.

Eiser was sued in December over allegations a Denver Post column was posted without authorization on her Tea Party group’s website.

Eiser has denied the allegations and in a June counterclaim against Righthaven, her attorneys including Todd Kincannon said Eiser was defamed by comments Gibson made for a Jan. 6 Fortune magazine story.

In that story, Gibson commented about complaints about Righthaven.

"Is it a complaint that the infringement community was caught and is not obeying the law?" he asked, and then suggested people who were complaining were part of "a community of thieves."

"These statements are false and defamatory with respect to plaintiff Eiser, who was widely known as a Righthaven defendant when these statements were published," the counterclaim said.

In asking that the defamation claim be dropped, Righthaven said in its filing Thursday that there’s nothing to indicate Gibson’s statement was about Eiser personally.

"The Gibson statement does not identify Eiser as someone 'caught violating the law' so that the statement fails to satisfy the element of defamation that it is 'about the plaintiff,'" Righthaven’s filing said.

"Righthaven contends that when considering the statement in the context in which Eiser asserts it should be understood, it could not reasonably be interpreted as stating false statements with a defamatory meaning of and concerning Eiser," Righthaven’s filing said.

Righthaven also complained that Eiser’s attorneys, in their counterclaim, had used a kitchen sink approach with 23 counterclaims covering disconnected legal theories.

It sought dismissal of these counts including conspiracy, fraud, negligent misrepresentation, abuse of process, malicious prosecution, negligent supervision of employees, intentional infliction of emotional distress, unfair trade practices, antitrust violations, racketeering and allegations that:

• Righthaven’s business model is illegal in South Carolina.

• Righthaven falsely claimed to own copyrights in violation of the federal Lanham Act. The Lanham Act is normally associated with trademarks and, among other things, outlaws false advertising.

• Righthaven violated the federal Fair Debt Collection Practices Act.

• Righthaven violated the Anti-Cybersquatting Consumer Protection Act.

On Eiser’s claim that Righthaven has violated the South Carolina Unfair Trade Practices Act, Righthaven has said Eiser fails to allege “any ascertainable loss of money or property, real or personal,” as the result of Righthaven’s alleged unfair or deceptive practices.

But Eiser’s attorneys charged in a court filing that Righthaven has violated the act by committing barratry – a criminal act in South Carolina – by inciting litigation over copyrights in which it has no interest. They’ve also accused Righthaven of practicing law without a license.

"Righthaven is a nationwide extortion operation that operates by lying to the federal judiciary and to its targets, falsely claiming ownership of copyrights so as to leverage settlement payments out of those targets," Eiser’s attorneys charged in a court filing.

As a result of Eiser being branded a copyright infringer, she lost the opportunity to obtain a job that would have substantially increased her income, Eiser’s attorneys said in a July court filing.

"As a result of plaintiff’s conduct, defendant is advised she will be denied the job due to the stringent nature of the background checks involved," Eiser’s attorneys wrote in the filing.

Charleston, S.C. attorney Edward Bertele, representing Righthaven, also complained in his filing Thursday that the 119-page counterclaim was filled with irrelevant criticism of Righthaven and Gibson, for instance claiming Righthaven is engaged in a "massive fraud" involving a "reign of terror" and "sham proceedings" and that Gibson has an "ill regulated mind."

"In totality, the counterclaim contains irrelevant and repetitive paragraphs for the purpose of offering legal argument and polemic statements in violation of the most basic requirements of federal pleading-simplicity. The unnecessary length and verbosity of the counterclaim burdens Righthaven with the duty to isolate the essential claims and it burdens this court with the duty to enforce this rule," Bertele complained in his filing.

It’s not known when the judge presiding over Eiser’s case will rule on motions that Righthaven’s lawsuit and Eiser’s counterclaim be dismissed.

Separately, another Righthaven lawsuit in Las Vegas was dismissed this week after Righthaven failed to show the defendant was served in time. This suit was against Daniel Benedix and Tucson DUI News and Attorneys.

Eight Righthaven suits have been dismissed since July 20 for lack of service of the defendants.



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Discussion 7 comments

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  1. It appears that the profit motives are going to be gone from the Righthaven plan if they keep having cases dismissed and having to defend their self in counter suits.

    Who is taking bets on which month they file BK?

  2. The agreement between Righthaven and MediaNews is similar to, but slightly different from the SAA with Stephens Media. Those differences are going to be significant for the MN cases I think because that agreement went to greater lengths to isolate RH and (to my layman's eyes) make RH appear to be a law firm representing MN.

    Even if RH can successfully say that Gibson was not referring to Eisner directly, there should still be plenty to give them a major headache, especially with the barratry claim.

  3. vegaslee,

    I had put the over/under at 60 days back in June for when RH would cease to function. There have been no new cases filed for some time, only a couple of re-filings and responses as needed. So it is debatable if they are still a functioning concern as contracted with.

    I would think that a BK would follow within 30 days after an adverse ruling from Judge Kane, or an adverse ruling on being an unlicensed law firm if that question is referred to the Nevada Supreme Court.

  4. Everyone should think about this:
    Vegaslee: "Who is taking bets on which month they file BK" Why would they? There have been no judgements against them and even in bankruptcy, the litigation RH has filed continues. The ruling on a law license is diminimus. It's on low on the list of the Court's rulings.
    Botfix: "the barratry claim..." Years before anything happens on this.
    All: My guess -- RH and the RJ are spending lots of dough and time on legal fees. Righthaven's held off on litigation until the Courts rule on a number of issues, which could be a week from now or a year or more.
    At day's end: The RJ is sold, at a distressed price, without liability for the litigation and Stephens Media will have to deal with it via its insurance.
    Finally, don't wish for a newspaper to go out of business. That's a lot of jobs for people who don't make policy.

  5. murrayburns,

    I doubt the RJ itself has any direct liability in this. (Granted, it might be a different case for Sherm.) The agreement is actually between Righthaven and Stephens Media and not the RJ. Throw in the possible relationship between owners of RH and those of SM it again looks like the RJ itself would not be directly at risk other than by the bad publicity it has received which might well have had an impact on its advertising revenue.

    As much as I dislike the RJ, I would not want to see it fold for a variety of reasons.

  6. botfx: "I doubt the RJ itself has any direct liability in this." It does, categorically. This response could be rather long, but suffice it to say, I am not one to make such a statement without substantive background.

  7. In undertaking this Crusade with Righthaven, Stephens Media has severely wounded its' flagship newspaper in many ways.