Las Vegas Sun | August 18, 2010
By Steve Green

New defenses are being asserted by websites and bloggers facing copyright infringement lawsuits for online postings of material from the Las Vegas Review-Journal.

The Review-Journal's copyright enforcement partner, Las Vegas company Righthaven LLC, has sued 98 North American websites and blogsites in federal court in Las Vegas since March -- typically demanding $75,000 in damages and forfeiture of the defendants' website domain names.

Attorneys say the Righthaven lawsuits are unprecedented in recent memory because, in the past, newspapers dealt with online copyright infringement by simply asking infringing websites to remove the infringing material and to replace it with a link to the source newspaper. Most Righthaven defendants say they were sued without warning and without anyone from the Review-Journal informing them there was a concern with their use of Review-Journal material.

None of the suits has reached the point where a judge has ruled on their validity. Defense attorneys usually argue that Righthaven has no right to sue since it didn't own the copyrights at the time of the alleged infringement -- Righthaven's procedure is to find an infringement, buy the copyright from the R-J and then sue over the retroactive infringement.

Defense attorneys also typically argue the use of the material is protected as fair use and, in the case of out-of-state defendants, that the Nevada court lacks jurisdiction over them.

In some cases, defendants argue they are not liable because the material was posted without their consent by third-party message board users.

Twenty-two of the suits have been settled and closed under generally undisclosed terms, though court filings revealed two defendants paid $2,185 and $5,000, respectively, to close their cases. The settling defendants haven't had to forfeit their website domain names.

Some defendants have hired attorneys and are fighting back.

New court filings show attorneys may argue that the Righthaven lawsuits are meritless since the Review-Journal website encouraged the online sharing of R-J stories -- providing an implied license to websites and bloggers displaying the material.

That's the argument made Tuesday by attorneys for Jan Klerks of Chicago, who was sued May 19 after an R-J story was posted on his website www.skyscrapercity.com, a nonprofit site covering skyscrapers and urban development.

Klerks is represented by attorneys with the Las Vegas office of the law firm Lewis and Roca LLP, which is representing several Righthaven defendants and in the past has called the Righthaven suits a campaign involving frivolous lawsuits that amounts to a shakedown aimed at coercing settlements from small bloggers and website operators.

In Klerks' case, they argued in court papers Tuesday that Klerks may offer a fair use defense since the story at issue was posted by a third party on a forum and that Klerks did not profit from the posting.

They also wrote: "As with every article that Righthaven is suing on, the allegedly infringed work was available for free on the Las Vegas Review-Journal’s website and is still available for free by conducting a Google search on the title of the article. There is no harm, no damages to Righthaven ..."

Klerks may potentially "establish an implied license," his attorneys also wrote.

"The Las Vegas Review-Journal, offered the allegedly infringed work to the world for free when it was originally published. It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. The Las Vegas Review-Journal web site also enables third parties to 'right click' and copy the text of articles on the site. Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement," the Lewis and Roca attorneys wrote.

Lewis and Roca's attorneys cited as precedent an implied license ruling in 2006 by U.S. District Judge Robert Jones in Las Vegas, who threw out a copyright infringement lawsuit filed against Google by Las Vegas attorney Blake A. Field.

Field claimed Google was infringing on his copyrights by caching material from his website and then linking to his website.

But Google charged Field had manufactured a $2.55 million copyright claim against Google by registering copyrights for 51 "literary works" and then requesting that Google's robot visit and index the pages in his website so they could be included in Google's search results.

"Field himself then clicked on the 'cached' links for each of the pages containing his copyrighted works and retrieved a copy of those pages from Google's system cache," Google attorneys wrote in court papers. "Remarkably, Field now claims in this lawsuit that by allowing him to retrieve copies of his own works at his express request, Google has infringed his copyrights.

"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.

Jones not only sided with Google in the case, but ordered Field to pay Google $25,000 in attorneys' fees.

In a separate Righthaven case, Lewis and Roca attorneys said it should be dismissed in part because the damages at most amounted to 1 cent.

In that case, Lehi, Utah, company Vote For The Worst LLC was sued over a posting involving a Review-Journal story about an American Idol TV show event in Las Vegas.

Vote For The Worst attorneys said in their response that it's a noncommercial website, although it did sell T-shirts that resulted in profit of $33.76 between June 2009 and May 2010.

They said the allegedly infringing material 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.

"The actual damages were probably, at best, 1 cent," the attorneys wrote.

Righthaven, however, sues for statutory damages that do not require it to show any economic harm from the infringements. The statutory damages, Righthaven says, are available to deter widespread online news piracy.

Another possible defense strategy is for Righthaven defendants to plead ignorance -- that is they didn't know that posting Review-Journal stories on their websites could amount to copyright infringement.

Three defendants have told the Las Vegas Sun they are considering that strategy, particularly they say since the Review-Journal tolerated or acquiesced to the online postings without objection -- for years in some cases.

Attorneys for Righthaven, in the meantime, are disputing allegations filed by defendant Michael J. Nelson in his case.

Sergio Salzano, a Las Vegas attorney for Nelson, a Las Vegas real estate agent, charged in court papers that Righthaven was operating as a money-making venture, that its copyright litigation campaign amounted to an abuse of legal process and that it smacks of "barratry," which is defined as the persistent incitement of lawsuits.

Righthaven attorneys Steven Gibson and J. Charles Coons fired back in court papers: "The reckless assertion of unclean hands as a defense to Mr. Nelson's blatant copyright infringement cannot be entertained by the court. Righthaven's pursuit of the instant copyright infringement claim is well-founded both in fact and in law, and is entirely devoid of illegality or transgression on behalf of Righthaven."

"Mr. Nelson bases his argument on a variety of unrelated facts, none of which have any bearing on the legal standard for unclean hands, or any bearing on this lawsuit in general. Similarly, Mr. Nelson fails to cite any legal authority to support these irrelevant contentions," they wrote.

They added that in the Nelson case, Nelson allegedly not only displayed an R-J story without authorization, but removed the credit line and erroneously attributed authorship to himself with the line: "Posted by Michael Nelson."

Righthaven called this "deceptive conduct" and not fair use of the material.

"Simply stated, this act – essentially one of plagiarism – most accurately exemplifies the presence of unclean hands in this lawsuit. Ultimately, Mr. Nelson's assertion of an unclean hands defense is nothing more than a diversionary tactic employed by a blatant copyright infringer," the Righthaven attorneys wrote.

Two Righthaven observers, in the meantime, have posted blogs critical of the Review-Journal and Righthaven for suing over online story postings rather than asking that the postings be replaced by links.

University of North Dakota law professor Eric E. Johnson writes at his Blog Law Blog that Righthaven's "shoot-first/shoot-everybody/shoot-often style of copyright enforcement is chilling bloggers out of their fair use rights."

"I think what the Las Vegas Review-Journal and its thugster stooge Righthaven are doing is completely obnoxious. It reeks. It also makes the Las Vegas Review-Journal look like a pack of feral alley dwellers instead of an earnest news organization that is deserving of the public trust.

"Filing federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior. That would apply to anyone. But for a newspaper to do it is abhorrent," Johnson wrote.

And Los Angeles attorney Mary Zachar, writing at the IP ADR blog (covering alternative dispute resolution of intellectual property matters), noted the R-J through Righthaven is suing its own customers even as "freedom of speech depends on a vast public domain."

"Most consumers see excerpting and linking as essential to dialog in today’s marketplace," Zachar wrote.

"To assert as (Righthaven CEO Steven Gibson) does that copyright is a media company’s core asset is to see 1st Amendment and copyright as separate rather than as twin pillars supporting the industry. When it sues its own consumer, and will even sue its content’s interviewee who has re-posted (a story involving himself), a dysfunction arises," she wrote.

Righthaven and the R-J, however, have argued the lawsuits are necessary to stop theft of the R-J's copyrighted material and that it would be impractical to contact all the alleged infringers to request they stop infringing.