Righthaven files new copyright suit as defendants push back

Righthaven LLC of Las Vegas filed another copyright infringement lawsuit Monday, even as existing defendants fought back against Righthaven lawsuits.

A lawsuit alleging copyright infringement was filed in U.S. District Court for Nevada against the nonprofit Lone Star Foundation Inc. and Andy Hogue in Austin, Texas, allegedly associated with the website lonestarreport.org. The Lone Star Report describes itself as a weekly publication providing news and commentary about Texas politics.

Records show that most of a Las Vegas Review-Journal story about Nevada election law charges against ACORN was re-posted on the Lone Star Report website on Nov. 29, with the information credited to the Review-Journal. Righthaven says in its lawsuit it now owns the copyright to the story and that it was posted on the Lone Star site without authorization.

As in all its recent lawsuits, Righthaven demands $150,000 in damages and forfeiture of the defendant’s website domain name.

William Lutz, managing editor of the Lone Star Report, said an inquiry from the Las Vegas Sun was the first he had heard there was any concern about the publication using the Review-Journal story.

Lutz said a simple phone call from the Review-Journal or Righthaven — as opposed to a lawsuit — could have resolved the problem.

"It wasn’t our intent to plagiarize anything. It wasn’t our intent to violate any copyright. We hope this can be resolved amicably," Lutz said.

This lawsuit lifted to at least 196 the number of copyright infringement lawsuits Righthaven has filed since March.

Righthaven is the Review-Journal's copyright enforcement partner. Righthaven has also been offering its services to the newspaper industry and at least two of its suits were filed over Denver Post material.

Two defendants sued earlier by Righthaven, in the meantime, have filed court papers denying the allegations.

One answer was filed by lawyers for attorney John Leighton and his firm Leighton Law P.A. in Miami and Orlando. They were sued in November after Righthaven said a Review-Journal illustration of the Vdara hotel "death ray'' was posted without authorization on Leighton's website resortinjurylawyerblog.com.

Leighton's answer includes assertions made by some other defendants who are challenging Righthaven's procedure of detecting copyright infringements, obtaining copyrights to the infringed material and then suing the alleged infringers on a retroactive basis.

"Plaintiff's alleged copyright is invalid and/or unenforceable,'' said the answer filed for Leighton by Las Vegas attorneys with the law firm Olson, Cannon, Gormley & Desruisseaux.

Leighton's attorneys also said the re-posting of the graphic was allowed by the "fair use'' doctrine -- an argument that has been receiving more attention since one of the judges handling Righthaven cases has ordered Righthaven to show cause why a lawsuit against a nonprofit should not be dismissed on fair use grounds.

Leighton's attorneys also asserted the "implied license'' argument in which another judge ruled the Review-Journal may have provided a license to users to reproduce its material by encouraging its readers to share its material online.

"Plaintiff’s claims are barred by the doctrine of misuse of copyright or failure to give proper statutory notice,'' Leighton's attorneys added in their answer. The "give proper statutory notice'' argument could relate to Righthaven's practice of suing website operators without first asking or demanding that infringing material be removed and/or be replaced with links, which is the standard practice in the newspaper industry.

Righthaven has not yet responded to Leighton's answer. The company insists its lawsuit defendants are not protected by the fair use and implied license arguments.

And while critics complain about Righthaven's policy of suing without warning, Righthaven points out in its lawsuits the defendants it sues also didn't bother to make a phone call or send an email to seek permission to post the material at issue.

Also responding to a Righthaven lawsuit was Michael Scaccia of the Southern Nevada town of Pahrump, who was sued in September after a Review-Journal story about problems at a private prison in Arizona was posted on his Pahrump Life website.

The Pahrump Life website has been active in opposing a private prison in Pahrump.

Scaccia, who represents himself in the litigation, said in his response that the story about officials resigning from a prison after prisoners escaped "is a recitation of facts consisting of less than 300 words and lacks sufficient originality of expression to be protectable by copyright.''

Scaccia also argued the post on the Pahrump Life site fully credited the Review-Journal and its writer, the post was protected by fair use and "defendant's purpose in publishing the article was to educate people in Pahrump and elsewhere about the dangers and other problems associated with private prisons.''

Scaccia noted the story was available for free on the Review-Journal website and wrote: "Since plaintiff suffered no damages and defendant made no profits, plaintiff should be awarded no money even if plaintiff were to prevail in this action.''

Scaccia asserted that if an infringement occurred, he was an unwillful infringer as he "had no reason to believe that the publication of the article in the Pahrump Life blog constituted an infringement of any copyright.''

If statutory damages are awarded, they should be the minimum $200 rather than the $75,000 demanded by Righthaven in its lawsuit, Scaccia wrote.