Defendants fight back against Righthaven copyright lawsuits

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Even as Las Vegas online copyright enforcement company Righthaven LLC continues to file new lawsuits, work appears to be piling up for its attorneys as additional defendants retain law firms to either fight back in court or represent them in settlement talks.

In what could be a showdown over Righthaven's lawsuit campaign, two attorneys for the San Francisco-based Electronic Frontier Foundation have signed on to represent the Democratic Underground LLC in one of the high-profile Righthaven lawsuits.

Righthaven is a Las Vegas company that detects online infringements to Las Vegas Review-Journal stories, obtains copyrights to those stories and then sues over the retroactive infringements. At least 129 copyright infringement lawsuits had been filed through Friday. The owner of the Review-Journal has participated in the lawsuits by investing in Righthaven and providing it the copyrights at issue.

The Electronic Frontier Foundation has been critical of Righthaven's legal tactics, including its common procedure of suing before contacting website owners to ask or demand that infringing material be taken down and/or be replaced with links as most newspapers do.

The EFF -- an influential freedom of speech and online privacy advocate -- has called Righthaven "just the latest group of lawyers to try to turn copyright litigation into a business model."

An EFF report this month said that Righthaven's lawsuits are "targeting news" and that its suits "could have a chilling effect on individuals' attempts to engage their communities in free and open discussion."

Righthaven and the Review-Journal, however, maintain the lawsuits are necessary to stop the theft of copyrighted Review-Journal material and this policy was spelled out in a blog by Review-Journal Publisher Sherman Frederick on May 28.

The EFF, though, is now committing its own legal resources to the Democratic Underground case filed Aug. 10.

The EFF has also been referring Righthaven defendants to outside attorneys -- some of whom may represent Righthaven defendants on a "pro bono," or free basis, as a public service.

In the Democratic Underground case, EFF attorneys Kurt Opsahl and Corynne McSherry will represent the group along with its local Las Vegas counsel, Chad Bowers of the Law Office of Chad A. Bowers Ltd.

These attorneys haven't yet filed an answer to Righthaven's Aug. 8 lawsuit, but plan to do so by Sept. 27.

Among the Righthaven lawsuits, the Democratic Underground case has generated more than the usual amount of interest because the defendant is a large and well-known political and news discussion site.

In addition, Democratic Underground users have criticized Righthaven because of four elements in the case raising liability and fair use issues: The story at issue involving Nevada U.S. Senate candidate Sharron Angle allegedly was posted not by the Democratic Underground webmaster but by a third-party message-board user; just four paragraphs of the 34-paragraph Review-Journal story were posted, the Review-Journal was fully credited in the post and there was a link from the post to the Review-Journal website.

Separately involving Righthaven, one of the higher-profile defendants, the Idaho-based Armed Citizen, has now retained the Las Vegas office of Lewis and Roca LLP to represent it.

Another gun-rights group, the Second Amendment Sisters Inc., is also newly represented by Lewis and Roca.

Another law firm in Las Vegas, Olson, Cannon, Gormley & Desruisseaux, is now representing the Center for Intercultural Organizing of Portland, Ore., in a suit filed by Righthaven.

In court papers filed Aug. 30, attorneys for that firm James Olson and Michael Stoberski sought dismissal of the Righthaven case, saying Righthaven didn't own the copyright to the story at issue at the time of the alleged infringement and that the Oregon group is not subject to the jurisdiction of the Nevada court since the Center for Intercultural Organizing doesn't do business in Nevada.

However, the defense attorneys later withdrew portions of their arguments after a judge in another Righthaven case ruled that out-of-state alleged "willful infringers" of Review-Journal material automatically are subject to the jurisdiction of the Review-Journal's home state court.

In addition, at least two of the Las Vegas federal judges handling Righthaven cases have -- for purposes of denying dismissal motions -- upheld Righthaven's right to sue for infringements that occurred prior to it obtaining the copyrights at issue.

Not all of the Righthaven lawsuits are being contested by attorneys.

Fred Pruitt of Baltimore, who has a website called, was sued after a website user "Beavis" allegedly posted to the site a July 9 Review-Journal editorial about President Obama visiting Las Vegas.

Pruitt has a website called that solicits donations to help in his defense.

Pruitt said in his response to the lawsuit that the editorial was posted by a third party "in contravention of the defendant's regularly-posted guidelines."

Pruitt wrote that after the editorial was posted -- but before he was sued on Aug. 9 -- he became aware of Righthaven because of a article about Righthaven and took steps to advise website users on July 23 and July 24 not to post Review-Journal material on the site.

"Any damages to the plaintiff, who purchased copyright to the (editorial) a full 18 days after its publication, must be less than negligible," Pruitt wrote in his response.

"Plaintiffs have filed as of the date of their complaint against the defendant approximately 93 lawsuits (129 through Sept. 17), each similarly-worded, each containing the same allegations of irreparable harm and demands for relief. The plaintiffs are operating a lawsuit mill forcing individuals and small groups going innocently about their avocations into expensive and time-consuming litigation of frivolous suits at a remote location and thus lack clean hands in the matter," he wrote.

Separately, Righthaven on Friday filed at least its 129th lawsuit in federal court in Las Vegas, this one naming as defendants Ralph R. Roberts and Ralph Roberts Realty LLC in Washington Township, Mich.

They're accused of displaying on Roberts' website a July 28 Review-Journal story about a Las Vegas homebuilder indicted in a mortgage fraud case.

As in all recent Righthaven cases, the lawsuit seeks $150,000 in damages and forfeiture of the website domain name to Righthaven.

Court records and a look at the website on Sunday showed the Review-Journal's reporter received credit for the story on the flippingfrenzy site -- but the Review-Journal did not. There also was no link from the flippingfrenzy post to the Review-Journal website. A request for comment was left with the defendant.