Copyright enforcer Righthaven is on the ropes in its home state of Nevada, where defense lawyers are attacking its agreement with the Las Vegas Review-Journal, saying the flawed agreement doesn’t give Righthaven the right to sue. Now, one websited targeted in a Colorado lawsuit is taking a novel approach to fighting back.
Buzzfeed.com has filed a class-action counterclaim against Righthaven, seeking to band together with other websites that have been sued. The counterclaim alleges that Righthaven’s lawsuit are an “abuse of process,” and that Righthaven doesn’t truly own the copyrights it is asserting. It also says Righthaven is suing in bad faith, by not sending a takedown notice first, and by not investigating whether the use of the photo might be a fair use.
The tactic of attacking Righthaven’s contract with its newspaper clients is building off the work done by defendants in the Democratic Underground case; in that case, lawyers from the Electronic Frontier Foundation and Fenwick & West are now litigating over whether Righthaven’s copyright assignment is valid at all. Essentially, the contract allows Righthaven to have the right to file copyright lawsuits but many other rights remain with Stephens Media. It isn’t clear whether such an arrangement is legal. Righthaven recently beefed up its legal team to do some damage control in that case.
In the DU case, a Nevada judge unsealed Righthaven’s contract with the Las Vegas Review-Journal. However, its agreement with its other big client, The Denver Post, remains under seal. It’s a fair bet that it’s pretty similar to the LV R-J agreement, and Buzzfeed and its lawyers seem to be operating on that assumption.
The lawsuit against Buzzfeed is over a photo of a TSA pat-down in an airport. The photo, originally taken by a Denver Post photographer, went viral and was widely republished online. The image has led to dozens of Righthaven lawsuits. Righthaven has filed close to 300 lawsuits in total, mostly against small websites.
Buzzfeed’s class action claim asks for damages under a Colorado state law regarding deceptive trade practices, and also asks for a court injunction to stop Righthaven’s lawsuit campaign. It’s not clear if this counter-attack will really go anywhere; so far, it’s mostly riding off the work done in the DU lawsuit. But it will take time and money for Righthaven to deal with it.
» Buzzfeed’s Answer and Class Action Counterclaim against Righthaven [PDF]