Copyright Law

Copyright Troll’s Methods Hit in Counterclaim Citing First Amendment

A copyright troll that purchases rights to stories in the Las Vegas Review-Journal and then sues alleged infringers is facing some pushback in an answer and counterclaim that cites the First Amendment.

The copyright troll, Righthaven, has sued more than 140 blogs and websites for alleged copyright infringement. One of the defendants, the left-leaning Democratic Underground online discussion forum, is fighting back with the help of the Electronic Frontier Foundation and the Winston & Strawn law firm, according to the Associated Press and an EFF press release.

The August lawsuit filed against the Democratic Underground seeks damages for a five-sentence excerpt from a 54-sentence Review-Journal article about the tea party movement, posted by a user who linked back to the original article. The answer (PDF) asserts Righthaven’s claim is barred by the fair use doctrine, the First Amendment, the doctrine of unclean hands, and “copyright misuse.”

The document also links Righthaven to the Review-Journal’s corporate parent, Stephens Media. It alleges that Stephens Media or its CEO provided the initial funding for Righthaven, and Stephens Media receives a share of any settlement or recovery.

“This case is a particularly abusive instance of a broad and aggressive strategy by Stephens Media, working in conjunction with its ‘little friend’ Righthaven as its front and sham representative, to seek windfall recoveries of statutory damages and to exact nuisance settlements by challenging a fair use of an excerpt of an article that Stephens Media makes freely available on the Internet,” the answer and counterclaim says.

The document also contends that the Review-Journal is guilty of the same kind of conduct that has resulted in Righthaven’s lawsuit, since it allows commenters to post up to one paragraph of copyrighted content, and its own employees have used excerpts of copyrighted materials.

Righthaven’s CEO, Steve Gibson, told AP that the allegations in the answer are “inflammatory.”

“That’s just ridiculous, and the reason it is ridiculous is that I don’t think there has been any defendant that we’ve called to shake them down for a settlement,” he said.

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