Bloggers File Unfair Trade Practices Suit Against Righthaven

Lora Bentley

So-called copyright troll Righthaven is now facing a class action lawsuit in the U.S. District Court for the District of Colorado.

 

According to the counterclaim, posted at Techdirt, the plaintiffs accuse Righthaven of unfair and deceptive trade practices under Colorado state law. Specifically, they argue that the suits are filed:

  • against individuals, nonprofits and small businesses unlikely to engage in substantive litigation because they cannot afford representation.
  • without proper notice.
  • without first exhausting other available remedies, such as informal takedown or attribution requests, formal takedown requests under the Digital Millennium Copyright Act, or arranging licensing agreements with the alleged offenders.

 

What's more, the counterclaim also alleges that if any of the plaintiffs do engage in the litigation - by filing an answer or a counterclaim to Righthaven's complaint - the company will usually move for voluntary dismissal of the action.

 

My question regarding Righthaven remains the same as it was last week: Why do the newspapers on whose behalf Righthaven supposedly sues need a go-between? Information Law Group Co-founder Tanya Forsheit shed some light on the issue when I spoke with her recently. The newspapers may view Righthaven's handling of the claims as more efficient than any efforts the newspapers themselves could undertake. Or, maybe it's that the lawsuits can be a new revenue stream at a time when the newspaper business generally is struggling. Maybe it's a combination of several things.

 

Then Forsheit pinpointed something I hadn't yet considered. When I asked why it wouldn't make sense for the newspapers to sue the alleged infringers in their own right - without the middleman - she said:

Well, it's really not even a legal question. It's more a question of perception ... but perhaps the newspapers don't want people to know it's really them suing these nonprofits and small businesses ...

There's probably something to that given the instances in which Righthaven has sued publishers that have partnerships or other business relationships with the newspapers it represents. But the value of having the "unknown" third party file suit is quickly diminishing. Even if the courts ultimately decide, Righthaven does have standing to sue (which I really can't see happening). Anyone who's read the media coverage will realize that Righthaven isn't the only one profiting from these "sue and settle" situations.



Add Comment      Leave a comment on this blog post
May 21, 2011 8:14 AM bwhite bwhite  says:

Companies like RightHaven may wither or mend their ways when brought under the limelight of a U.S. Courthouse.

But that will not stop the practise of SLAPP suits and other attacks on Bloggers. Legal attacks will be outsourced to other countries like India, spurred by recent and new Indian laws.

There is already a record of some Indian companies sending C&D notices attempting to shut down blogs by alleging trade mark violation; some blogs survive but some may not. One such C&D notice can be seen at http://www.chillingeffects.org/protest/notice.cgi?NoticeID=33101 against the Singaporean blog at http://forabettergiis.blogspot.com ).

With new Indian laws planned against bloggers http://ibnlive.in.com/news/read-the-controversial-internet-control-rules/150319-

53.html I predict more outsourcing of SLAPPs towards India as the impact of the laws is global as opposed to merely Indian.

The Indian police also seem eager to get involved in policing the internet. I will be happy to point out a bunch of those references to anyone who is researching this further, feel free to ask !

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