Attorney: Righthaven copyright suits a free speech threat

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One of the attorneys fighting the Righthaven LLC copyright lawsuits has penned an opinion article critical of Righthaven, calling it a threat to free speech.

Lewis and Roca LLP attorney Jonathan Fountain discusses Righthaven and its lawsuits involving Las Vegas Review-Journal stories in a post at

Fountain is one of at least four Lewis and Roca attorneys in Las Vegas that have represented Righthaven defendants in litigation and settlements.

Righthaven detects online infringements to Review-Journal stories, acquires copyrights to the allegedly infringing material and then retroactively sues website owners over the allegedly unauthorized postings of the material. While recently demanding damages of $150,000 in each of its suits and forfeiture of defendants' website domain names, Righthaven typically settles for less than five figures and lets defendants keep their domain names.

Among law firms handling Righthaven cases, Lewis and Roca represents the largest number of defendants and the firm made headway last week when a judge agreed in one of the cases that fair use and "implied license" defenses may have merit.

Under the "implied license" theory, people are free to use Review-Journal stories online without infringing on copyrights because the Review-Journal encourages such online sharing. Righthaven has disputed this.

"Websites beware. Once a mighty empire, the newspaper industry -- an industry that has blamed the Internet for more than a decade’s worth of declining readership and advertising revenues -- is striking back. If you own a website and a newspaper article from the Las Vegas Review-Journal has been posted on your website, then you are in the crosshairs and are at risk of being sued for copyright infringement," Fountain wrote in the lexology piece.

He noted that since Righthaven does not send cease and desist letters before filing suit, many of its targets have reported being taken by surprise by the lawsuits.

"Indeed, many alleged infringers have reported that they would have voluntarily removed the newspaper articles from their websites if they had been asked to do so," wrote Fountain, who went on to explain various legal defenses against Righthaven as well as steps website operators should take to prevent lawsuits.

"The implications of the Righthaven cases upon free speech is clear. By appointing itself as the copyright enforcer of the Internet, Righthaven is chilling free speech throughout the country," Fountain wrote.

Separately, Righthaven this week filed at least its 132nd copyright infringement lawsuit in federal court in Las Vegas since March.

The newest defendant is the owner of the Motor Trend magazine website, where someone allegedly posted on a forum a July 20 Review-Journal story about protesters blocking the Las Vegas Strip.

The protesters were demanding that Sen. Harry Reid support legislation prohibiting discrimination against employees on the basis of sexual orientation or gender identity.

A request for comment was placed with the operators, LLC and Source Interlink Media LLC.

In a similar Righthaven lawsuit involving a forum post about Reid at the website, Fountain and other attorneys for the defendant, Internet Brands Inc., responded with the implied license defense and accused Righthaven of "barratry," among other things.

"Barratry" is defined as the persistent incitement of litigation or as creating legal work by stirring up disputes and quarrels.

Righthaven, in an unrelated case, has denied the allegation of barratry.

Righthaven and the Review-Journal say the lawsuits are necessary to stop widespread online infringements of Review-Journal copyrights.

The suits against the Motor Trend site and Internet Brands are among a handful of suits Righthaven has filed against what appear to be well-funded corporations. Most of its lawsuits are against individuals, bloggers, nonprofits and other operators of special-interest websites.