Righthaven message-board suit survives dismissal motion

The owners of a Utah website may be liable for copyright-infringing content posted on their site without their knowledge, a federal judge in a Righthaven LLC lawsuit ruled Wednesday.

U.S. District Judge Kent Dawson in Las Vegas denied a motion for dismissal of a Righthaven copyright infringement lawsuit against Lehi, Utah, company Vote For The Worst LLC.

That means the case may proceed toward a trial or resolution on summary judgment, unless a settlement is reached.

Vote For The Worst was sued last year over a posting involving a Las Vegas Review-Journal story about an American Idol TV show event in Las Vegas.

Righthaven is the copyright enforcement partner of the Review-Journal and the Denver Post that has filed at least 261 lawsuits alleging infringements since March 2010.

Vote For The Worst attorneys said the allegedly infringing material on the website amounted to one-third of an R-J story with a link to the full R-J article and that it was posted without their knowledge April 11 by a forum participant in India.

They said the material was removed when it was noticed by Vote For the Worst managers, before they were sued by Righthaven and without any request by the R-J or Righthaven to remove the material.

"The website ... does contain advertising through Google AdSense. Yet Vote For The Worst received essentially no income from the forum at issue — at most, Google Ad revenue from that forum constituted 1 cent of income," Vote For The Worst attorneys said in a court filing.

But Righthaven says it's entitled to statutory damages in the case of $75,000. With statutory damages, actual harm to Righthaven or the Review-Journal doesn't have to be proven. Such damages were made available by Congress to deter copyright infringement, Righthaven has said.

(After the Vote For The Worse case was filed, Righthaven upped its standard lawsuit demand to $150,000).

Dawson in his ruling Wednesday noted the defendants sought dismissal on jurisdictional grounds, arguing litigating the case in Nevada would be "unduly burdensome and unfair" since they did not post the story at issue on their site and did not know the story was posted in a message-board forum.

"It is undisputed however, that votefortheworst.com provides multiple user forums and message boards wherein content can be freely posted at the user’s discretion. Defendants do not articulate or implement any form of copyright enforcement policy or impose any rules or guidelines directed towards controlling copyright infringements that may occur on their website," Dawson wrote in his ruling.

The judge noted the defendants had failed to protect themselves against a lawsuit over third-party message posts by registering an agent for the receipt of copyright complaints under the Digital Millennium Copyright Act (DMCA).

Despite assertions by the defendants they spotted and removed the post before they were sued by Righthaven, Dawson wrote in his ruling there is nothing in the record to show they "engaged in any form of proactive copyright protection on the website."

"Thus, defendants cannot claim that their lack of knowledge of infringement, when such activity is reasonably foreseeable, can shield them from being subject to this forum’s jurisdictional reach," the judge wrote.

This appears to be the first of what may be several rulings by federal judges handling Righthaven cases on whether out-of-state website operators can be hauled into federal courts because of third-party message board postings.

The ruling comes as Righthaven tries to rebound from bad publicity over some of its Denver Post TSA pat-down photo lawsuits -- as well as two lawsuit dismissals on fair use grounds.

A potentially important ruling is still expected to come out of Righthaven's lawsuit against the Democratic Underground.

Attorneys with the Electronic Frontier Foundation in that case claim to have received evidence about Righthaven's copyright assignments undermining Righthaven's lawsuits over Review-Journal material -- assertions denied by Righthaven.