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Righthaven Hit With Class Action Counterclaim 91

Posted by CmdrTaco
from the tag-yer-it dept.
Hugh Pickens writes "Steve Green reports that one of the website operators accused of copyright infringement by Righthaven has retaliated, hitting the Las Vegas company with a class-action counterclaim, charging that defendants in all 57 Righthaven cases in Colorado 'are victims of extortion litigation by Righthaven, which has made such extortion litigation a part of its, if not its entire, business model.' The counterclaim says Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, among other things. The claim seeks an adjudication that Righthaven's copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law, an injunction permanently enjoining Righthaven from continuing the alleged unfair and deceptive trade practices, an unspecified financial award to the class-action plaintiffs for damages as well as their costs and attorney's fees."
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Righthaven Hit With Class Action Counterclaim

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  • by Nidi62 (1525137) on Tuesday May 17, 2011 @05:34PM (#36159130)
    Disbarment of the lawyers employed by Righthaven.
    • by Anne Thwacks (531696) on Tuesday May 17, 2011 @05:48PM (#36159234)
      Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.
      • by Nidi62 (1525137)

        Somewhat optimistically, I misread this as disembowellment of the lawyers. Even Shakespeare would be impressed if that happens.

        No, no. The disembowelment should be reserved for the people that started Righthaven, and other patent/copyright trolls.

        • by blair1q (305137)

          And then again, the judge may find all of this countersuit's claims true, yet still find merit in what remains of Righthaven's suit.

        • Wait, what? That's still illegal?

          Hang on, I think I should call my lawyer.

      • by Alex Belits (437) *

        I insist on standardizing on the procedure that I have proposed for Microsoft -- a river of blood flowing between hills made of crushed bones of all employees, topped with skulls of executives.

        • by ae1294 (1547521)

          I insist on standardizing on the procedure that I have proposed for Microsoft -- a river of blood flowing between hills made of crushed bones of all employees, topped with skulls of executives.

          Torgo's Executive Powder(tm)

      • Actually, I read dismemberment ...

      • by Fjandr (66656)

        It was "dismemberment" for me.

    • I think that this is a problematic view of the situation. The oath of service that lawyers take is to fight for their client regardless of their personal opinion. The strength of the system rests in the abstraction of the lawyer's morals from the case they are contesting.

      It is easy to blame a lawyer who defends a murderer or a rapist. However, if no lawyer was prepared to do so, many people accused of those crimes would lose their cases purely due to no representation. Lets not return to an age of wit
      • abstraction of the lawyer's morals

        That is presumably a relatively simple task, not requiring dental tools?

      • by Rogerborg (306625) on Wednesday May 18, 2011 @06:22AM (#36163802) Homepage

        The oath of service that lawyers take

        Nevada bar oath of office:

        Rule 73. Attorney's oath. Upon being admitted, each applicant shall take and subscribe to the following oath:

        I DO SOLEMNLY SWEAR, OR AFFIRM, THAT:

        I will support the Constitution and government of the United States and of the State of Nevada;

        I will maintain the respect due to courts of justice and judicial officers;

        I will support, abide by and follow the Rules of Professional Conduct as are now or may hereafter be adopted by the Supreme Court; and

        I will faithfully and honestly discharge the duties of an attorney at law to the best of my knowledge and ability.

        Counsel are first and foremost officers of the court, not of their clients. Fighting for their client does not allow them to take actions that they know, or should know, do not comply with the law, or waste the court's time.

        • There's nothing there about that.. read the Rules of Professional Conduct: Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.

          (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry o
    • by Dan541 (1032000)

      I read that a little fast then and thought you said "Disembowelment of Lawyers".

      I'll chip in for that.

  • Live by the sword... (Score:5, Interesting)

    by Derekloffin (741455) on Tuesday May 17, 2011 @05:35PM (#36159140)
    ...Die by the sword. Let's all hope it works out and Righthaven gets justly crushed.
    • Re: (Score:3, Insightful)

      by Cogita (1119237)

      ...Die by the sword. Let's all hope it works out and Righthaven gets justly crushed.

      There's a reason it's basically a shell company, and doesn't own any of the rights...

  • Where do a send a check to help defray costs?
  • by martas (1439879) on Tuesday May 17, 2011 @06:10PM (#36159424)
    PLEASE help them win this counterclaim! Seriously dude, I know you like a hands-off approach to parenting, but in this case we could really use your help...
  • Represented by ... (Score:4, Interesting)

    by overshoot (39700) on Tuesday May 17, 2011 @06:18PM (#36159478)
    Brownstein Hyatt -- apparently a firm that does a lot of business with the gaming industry. The thought of big Italian lawyers in pinstriped suits comes to mind, but to be honest my first thought was of an obscure single practitioner in California and my second was of the enormous firm of Morrison Foerstner. [mofo.com] And yes, if you follow the link, that really is what the firm call themselves. With some justice.
    • by sconeu (64226)

      The MoFos represented Novell in the SCO suit.

      • by wes33 (698200)

        The MoFos represented Novell in the SCO suit.

        And between them and Boise and Co dragged
        it out for about 7 years and perhaps 40
        million dollars of legal fees

        • by Alex Belits (437) *

          Boise

          Boies. Boise is the capital of Idaho that no one cares about, Bose is a company that makes shitty consumer audio products, Boies is a ridiculously expensive lawyer that has a tendency to jumps into every high-profile lawsuit and mess it up.

          • I know you're right, but dude, you sound like one of those stupid Bing commercials! Read your post in a monotone and see what I mean :)

    • Talk 'bout a fitting company name.

  • by Anonymous Coward

    Is this a new campaign land in the Dragonlance universe?

  • Now if the lawyers would go after the frivolous claims made by Lodsys to shake down the iOS developers . . .

    It would be a good week.

  • Righthaven has victimized defendants by failing to send takedown notices prior to suing, by threatening to take their website domain names when that's not provided for under the federal Copyright Act, by falsely claiming it owns the copyrights at issue and by failing to investigate jurisdictional and fair use issues before suing, ... Righthaven's copyright infringement lawsuits amount to unfair and deceptive trade practices under Colorado law

    That's well and good, but is it actually codified in law anywhere? Because as much as I'd love to see copyright trolls like Righthaven go away, their business model sort of hinges on being legally "right" and not breaking the law, at least not the letter of the law.

    Accusing them of the opposite seems like a long shot.

    They're all about finding and exploiting loopholes in copyright law, and unfortunately, finding and exploiting loopholes in the law isn't patently illegal.

    • by jonbryce (703250) on Tuesday May 17, 2011 @06:46PM (#36159720) Homepage

      Claiming damages for copyright infringement in respect of material for which you do not own the copyright falls very definitely on the other side of the law. Righthaven have no more right to collect damages for this than you or I do.

      • by _0xd0ad (1974778)

        material for which you do not own the copyright ... Righthaven have no more right to collect damages for this than you or I do

        If you're authorized by the copyright holder, you're pretty much free to do anything they can do, if I'm not mistaken.

        • by Anonymous Coward on Tuesday May 17, 2011 @11:39PM (#36162134)

          material for which you do not own the copyright ... Righthaven have no more right to collect damages for this than you or I do

          If you're authorized by the copyright holder, you're pretty much free to do anything they can do, if I'm not mistaken.

          Wrong. When dealing with copyright, you cannot transfer only the ability to sue. You can only transfer that in conjunction with one of the other exclusivity rights in Section 106 of the 1976 Copyright Act. You need to have some other interest in the copyright other than the right to sue. Silvers v. Sony Pictures Entertainment, Inc. makes that clear for the 9th Circuit (there has been some confusion on this and disagreement in other federal courts).

          To quote 402 F.3d 881 on 883:

          May an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, institute an action for infringement? After analyzing the 1976 Copyright Act and its history, as well as the scant, although persuasive, precedent that is available in analogous situations, we answer that question “no.” Accordingly, we reverse the ruling of the district court, which allowed this action by the assignee to proceed.

          and 884:

          Accordingly, our starting point is the statute.

          Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:

          The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

          17 U.S.C. 501(b) (emphasis added). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).

          Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:

          (1) to reproduce the copyrighted work in copies or phonorecords;

          (2) to prepare derivative works based upon the copyrighted work;

          (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

          (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

          (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

          (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

          17 U.S.C. 106. The right to sue for an accrued claim for infringement is not an exclusive right under 106. Section 201(d) refers to exclusive rights and provides:

          (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

          (2) Any of the exclusive rights comprised in a copyright, including any subdivision*885 of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and re

        • by AK Marc (707885) on Wednesday May 18, 2011 @01:04AM (#36162520)
          The AC is right, but long winded. The short answer is the Judge should accept the case in question, look at the law, and issue a summary judgment.

          Righthaven has the right to sue, however since they have no right to the copyright itself, there is no manner in which they could have had a loss. As such, the judge should dismiss the case as if it did succeed on merits, the loss is provably zero.

          Righthaven hopes that the statutory minimums will let them claim that as a loss, however, the standard legal processes are in place until after the judgment of liability is made, and the case would fail before that point without regard to any statutory minimums.
          • by jfengel (409917)

            Does this apply to other areas, or just to copyright?

            Are there other areas in which you can transfer the right to sue? You can sue for a debt; can you transfer the right to sue for the debt without transferring the debt itself? What about the right to sue for damages, in which case no debt has been created yet but one would be if the judgment made one?

            To a non-lawyer's eye it sounds like "potential debt" and "debt" would be treated similarly in the eyes of the law, but I know that they're not the same.

            • by AK Marc (707885)
              You can pay someone to collect a debt for you, or you can sell the debt itself, but no, you can't just sell the right to sue and nothing else. There is no "right to sue" and you have to actually transfer a loss to them for them to be able to sue, or be actively employing them. And nobody wants to employ someone like Righthaven because their illegal actions will reflect on the company that employs them, and the legal liability for counter suits like this will often include the parent company as well.
              • by jfengel (409917)

                As I understand Righthaven's business model, they do acquire the copyrights to the articles over which they're suing. At least in theory, that's a valid model, but they seem to be going out of bounds as well.

                For example, one lawsuit dismissed was decided as fair use. The extract was 8 sentences. I'm not in a position to judge if that really was a valid derivative work, but it sounds to me like there should be many clearer cases they could be litigating without getting themselves in legal trouble over iff

                • by AK Marc (707885)
                  That was the point of the disclosure of the contract where they gained the right to sue, but not the rights to the articles in question (they wouldn't be able to print them all up in a book of articles). They may have different contracts with different people, but the most recent I saw released they essentially bought the right to sue, but not the right to print the articles themselves.
    • That's what the concepts of bad faith and abuse of process are for. Exploiting the letter of the law to deceive and harm people via the court system isn't legal.

      • by _0xd0ad (1974778)

        I'm sorry if my faith in the legal system is slightly less than ideal, but the Supreme Court just ruled on a 89% count that the police can break down your door and search your house if they smelled marijuana and heard noises that might mean you were destroying evidence.

        Bad faith? Bah.

    • If everything fails there's still good ol' torch'n pitchfork jurisdiction.

      I'm really wondering when the first person realizes "Hey. They ruined my life and I didn't do anything to deserve it. Let's go and make the crime match the verdict" (insert loading sound of automatic weapon).

      • by drinkypoo (153816)

        There seems to be little incentive to do such a thing unless already sentenced to prison. And unless you're loaded with cash they're not going to wait for you to turn yourself in thereafter.

  • by Fujisawa Sensei (207127) on Tuesday May 17, 2011 @07:01PM (#36159844) Journal

    There need to be criminal charges filed against this asshole as well. But not before they bankrupt his ass legal expenses and judgments for his civil crimes. That way we wont be able to get anything buy a public defender for the criminal case and the civil attorneys will have done most of the research for the criminal prosecutor.

    And I hope his lawyers are named as accomplices in both cases, so they can get bankrupted themselves; followed by disbarment by a federal judge, then end up in prison with him.

    Keeping this assholes like these in prison would be a much better use of tax payer dollars than doing the same for a few pot smokers.

  • Takedown notices aren't mandatory. The DMCA doesn't revoke preexisting means of resolving infringement. It is perfectly acceptable to sue without prior notice.

    • by Anonymous Coward

      Yes but in general courts should not be the first resort, you should make some attempt to resolve the issue outside of court unless there are strong mitigating circumstances. If you don't do this expect to be called on it, and it's usually not looked favorably on to abuse the court system like that.

    • by AK Marc (707885) on Wednesday May 18, 2011 @01:17AM (#36162574)

      It is perfectly acceptable to sue without prior notice.

      You are confusing legal with acceptable. If you don't like your neighbor and there is a tree growing over the property line that you want cut down and you know he would like to keep, if you sue and the judge asks you if you even spoke with the neighbor regarding the issue, it's expected that the judge would dismiss the case without prejudice before hearing any testimony. He doesn't care who is right, if you haven't tried reasonable steps to resolve the issue, then he won't hear it. If you then talk to your neighbor and the issue isn't resolved and it comes back in front of him, then he'll hear it.

      Or, in your terms, it's perfectly acceptable for the judge to dismiss all lawsuits presented before him that were filed without prior notice.

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