EFF backs political site's Righthaven counter-suit

A political discussion website has launched a court action against so-called copyright troll Righthaven, the company which is demanding website operators pay it when material from a Nevada newspaper is posted online.

Righthaven is reportedly part-owned by Stephens Media, the publishers of the Las Vegas Review-Journal. Stephens Media transfers to Righthaven the copyright in articles which have been posted in whole or in part on websites.

Righthaven then writes to the website operators alleging copyright infringement and demanding payments of up to $150,000 to settle the action. A lawyer acting for some of the targeted websites told OUT-LAW recently that most cases settle for around $2,500.

Digital rights group the Electronic Frontier Foundation (EFF) has been looking for a test case to challenge what it calls Righthaven's bullying tactics. It is now backing a counter-claim by political discussion site Democratic Underground, which is asking the US District Court of Nevada to declare Righthaven's claims invalid.

Democratic Underground argues that the assignment of copyright in articles used by others from Stephens Media to Righthaven is "a sham"; that the way the Review-Journal publishes articles online gives an implied licence for its use; that the use comes within US copyright law's 'fair use' protections; and that the case is too trivial to merit the kind of action taken by Righthaven.

Companies have long acquired patents with the sole intention of using them as the basis of a litigation threat and seeking licensing fees from companies whose technology may infringe those patents. These companies are called 'patent trolls', leading some to call Righthaven a copyright troll because it uses acquires copyrights to use as the basis of legal threats.

Democratic Underground said that it was taking the action because it believed Righthaven's practices threatened the freedom of US political discussion.

"Thousands of people discuss and debate political issues on our site every day, particularly now during election season," said Democratic Underground founder David Allen. "Online discussion often requires quoting from news sources -- a legal fair use of the material. By targeting short excerpts of news articles with their sham copyright claims, Righthaven is chilling free and open discussion on the Internet."

The EFF said that it wanted to file a counter-suit demanding a declaration that the use of parts of Review-Journal articles is legal because individuals were being intimidated by Righthaven's practices.

"Despite what Righthaven claims, it's hard to interpret these lawsuits as anything else besides a way to bully Internet users into paying unnecessary settlements," said EFF senior staff attorney Kurt Opsahl. "At the same time, Righthaven is trying to discourage the practice of quoting and linking that is both essential to the interconnected Internet and linking that is both essential to the interconnected Internet and helps drive significant traffic to newspapers online."

Democratic Underground's lawsuit said that Righthaven searched the internet for phrases used in an article about a Nevada politician before finding a five-sentence excerpt of a 50-sentence story on its message boards, which was posted by a user named 'pampango'.

"'Pampango' posted the excerpt to draw attention to and foster discussion of important political news," said the suit (pdf). "In the post on the Democratic Underground Website at issue, the five sentences accompanying the link to the News Article on LVRJ [Las Vegas Review Journal]’s website provided context for the link to the LVRJ website ... in posting the excerpt, 'pampango' made a fair use of the News Article."

The counter-claim also argued that the Review-Journal's policy of allowing and encouraging users to share its stories and share them via various online services meant that an 'implied licence' to share parts of the material was in existence.

Michael McCue of Lewis and Roca, which is representing more than a dozen of the people targeted by Righthaven, told OUT-LAW Radio that most people are choosing to settle the actions because they cannot afford to go to court to defend themselves.

"There have been a number of individuals who have contacted us who could not afford to even pay a $1,000 or $2,000 for initial representation," he said. "Almost all of the defendants that we represent have sought to quickly settle.

"From a purely economic perspective they have a very high incentive to settle because the cost of defending the claims by Righthaven will greatly exceed the amount for which they can settle the case," said McCue. "So, although they believe that what they have done is legal and believe that they have strong defences in most cases it is not worth spending money on lawyers to defend them, it is much more prudent to spend a few thousand dollars in some cases to just settle the case."

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