Website owner pushes back against Righthaven with counterclaim

Another website owner is fighting back against newspaper copyright enforcement company Righthaven LLC, counter-suing the Las Vegas firm and charging it sues first and asks questions later.

A motion for dismissal and a counterclaim was filed against Righthaven on Wednesday in U.S. District Court for Nevada by Azkar Choudhry and his Pak.Org website, which were sued by Righthaven on Dec. 13.

Righthaven, the copyright enforcement partner of the Las Vegas Review-Journal, accused Choudhry and the Pak.Org website of copyright infringement after a Review-Journal graphic illustrating the Vdara hotel "death ray" showed up on the Pak.Org site.

In denying the copyright infringement allegation, Choudhry said he had nothing to do with the graphic showing up on his website and that it appeared there because of an “inline link,” described by Choudhry's attorneys as "a line of computer code used in Internet web pages to direct a user’s browser program to a third-party site to retrieve an image directly from that third-party site."

In this case, Choudhry's attorneys said his domain names and direct users to his web site "GupShup," which in the Urdu language spoken in India and Pakistan means "gossip" or "casual talk." They say Choudhry launched the site in Houston in 1994 and that it has grown to 7.8 million posts and receives more than 2 million page views monthly. They say Choudhry operates the site as a "labor of love" and that it about broke even in 2009 and 2010.

The Righthaven lawsuit, Choudhry's attorneys say, resulted from a Make Magazine blog on Oct. 7. That blog included a post called "Can a Building Be a Sun-Death Ray? Yes!" and included the Review-Journal graphic, a link to the Review-Journal Vdara story and a link to an article in Wired Magazine about the optical properties of curved buildings, Wednesday's court filing said.

The Make post was put on its RSS (Really Simple Syndication) feed, which GupShup subscribes to, resulting in the post showing up on a GupShup forum, Choudhry's filing said.

"At no time did the GupShup post include a copy of the infographic, it merely linked to that image at its location on Make's servers," Choudhry's attorneys wrote in their filing.

Regardless of what happened, a Righthaven court exhibit shows the Review-Journal graphic on Choudhry's website.

Nevertheless, Choudhry's attorneys wrote in their filing: "it is the third party that is reproducing, distributing, or displaying any allegedly infringing image, not the provider of the inline link."

"This lawsuit represents yet another example of Righthaven’s questionable business model – to sue first and ask questions later," Choudhry's attorneys argued.

Choudhry's attorneys added in their lawsuit that the first he heard there was any concern about the image showing up on his website was when he was contacted about the lawsuit by the Las Vegas Sun.

This is the reaction of many defendants, who say Righthaven sues them without warning or a request by Righthaven or the Review-Journal that allegedly infringing material be removed and/or be replaced with links.

"Before learning of the suit, Mr. Choudhry had never heard of the Las Vegas Review-Journal or of plaintiff Righthaven," his attorneys wrote in their filing.

Righthaven, however, has said its lawsuits are necessary to deter rampant online infringement of newspaper content and it argues in its lawsuits the the defendants it sues didn't bother to call or e-mail the Review-Journal to seek permission to post Review-Journal material.

Choudhry's attorneys also argued that even if Choudhry had placed the graphic on his website, that would be protected under the fair use doctrine in copyright law since they say the graphic at issue didn't involve much creativity.

"There are very few ways to illustrate the Sun’s reflection off the Vdara and into its pool area. Every illustration of the Vdara death ray must, of necessity, include: the Vdara; its pool area; a beam of sunlight; traveling at the precise angle required to be reflected into the pool area and some factual text. The idea of placing all of these elements together to describe the Vdara death ray is not copyrightable, nor are the facts that the elements represent," Choudhry's filing said.

In his counterclaim, Choudhry accused Righthaven of "champerty," or an improper arrangement where a party with no interest in a lawsuit agrees to finance and bear the expense of litigation in exchange for a portion of the proceeds.

"Righthaven uses the threat of statutory damages, domain name seizures and attorneys fees to extract low-value settlements from defendants. Counterclaimant is informed and believes that Righthaven subsequently shares a portion of the settlement proceeds with the newspaper that purportedly 'sold' the copyright to Righthaven in the first place," Choudhry charged.

"Mr. Choudhry alleges that a principal aspect of Righthaven’s business model is to file copyright infringement lawsuits in the hopes of intimidating defendants into quickly settling for amounts in the four-figure range," his filing said.

Choudhry also alleged "Righthaven has no market for the copyrighted works it purports to own, other than the settlements it extracts in litigation."

Choudhry's attorneys charged that the Righthaven business model involves Righthaven searching the Internet to find infringements of Review-Journal material, acquiring copyright rights in the allegedly infringed material, suing the alleged infringer and then sharing lawsuit proceeds with Review-Journal owner Stephens Media LLC.

"Mr. Choudhry ... alleges that Stephens Media would not have brought this action but for Righthaven’s intermeddling," the counterclaim charged. "Based on the circumstances described above, Righthaven is liable for champerty."

Similar allegations of legal wrongdoing including "barratry," or the excessive incitement of litigation, have been leveled against Righthaven and Stephens Media in previous counterclaims. So far, the Nevada federal judges handling the Righthaven lawsuits have not yet ruled on the validity of the counterclaims and a State Bar of Nevada review of a complaint filed by an unidentified party last year involving Righthaven is continuing.

Choudhry is represented by San Francisco attorney Chris Ridder of Ridder, Costa & Johnstone LLP and Las Vegas attorney Chad Bowers. Ridder is a non-residential fellow at Stanford Law School’s Center for Internet and Society.

Ridder's firm earlier defended the Media Awareness Project (MAP), a group advocating drug policy reform, against a now-settled Righthaven lawsuit. In that case, codefendant the National Organization for the Reform of Marijuana Laws in Washington, D.C., settled for $2,185; MAP’s settlement amount was not disclosed.

Attorneys for Righthaven have not yet responded to Choudhry's motion for dismissal and counterclaim.

In other Righthaven developments:

--Righthaven filed at least its 205th copyright infringement lawsuit since March this week, suing Sevaan Franks and A Blog About History, charging a Review-Journal photo was posted on Franks' blog without authorization. A message for comment was left for Franks.

Another recent suit was filed by Righthaven over a Review-Journal column and a story against Mezmerizing Llama LLC and Charles Atkins, allegedly associated with the website A message for comment was left with Mezmerizing Llama.

--Righthaven last year also filed two lawsuits over material allegedly lifted without authorization from the Denver Post, and one of those defendants has filed court papers in South Carolina denying the allegations.

Dana Eiser, who was sued in December, said in her response that she did not post the Denver Post column at issue.

Eiser, who represents herself in the litigation, charged that Righthaven violated the Federal Rules of Civil Procedure because its lawsuit "was undertaken without any diligence in determining the facts or party allegedly responsible for placing the allegedly owned and copyrighted article on the Internet weblog."

She also said the alleged posting of the column was protected by the fair use doctrine.

Righthaven has not yet responded to her assertions.

--A columnist in Salt Lake City suggested Righthaven may be planning lawsuits over material lifted from The Salt Lake Tribune, which like the Denver Post is owned by MediaNews Group Inc.