Righthaven Defendants Fight Back

May 19, 2011
By Michael Smith on May 19, 2011 8:32 AM |

iStock_000006810819XSmall.jpgOn February 25, 2011 I wrote a blog post about Righthaven, LLC, a company that has made a business out of suing owners of web sites for alleged copyright infringement. At the time, Righthaven had filed at least 239 lawsuits against all sorts of defendants, including individuals, small businesses, and nonprofit organizations. The number of lawsuits has now reached at least 275, most of them in either Nevada or Colorado.

Although many of the lawsuits have been settled, some of the defendants have chosen to fight back. For example, in Righthaven LLC v. Buzzfeed, Inc., the defendants recently filed a class action counterclaim on behalf of the defendants in all the Colorado lawsuits. In their counterclaim, the defendants argue that Righthaven has committed abuse of process and violated the Colorado statute against unfair and deceptive trade practices. In support of their counterclaim, the defendants allege, among other things, that


  • Righthaven has asked for remedies that it knows it is not entitled to. Specificially, the counterclaim says that Righthaven has tried to lock the defendants' websites and to get ownership of those websites.

  • Righthaven has attempted to coerce defendants into monetary settlements by threatening to get statutory damages and to take control of the defendants' websites.

  • Righthaven has sued for infringement of copyrights that Righthaven does not own.

The defendants also raise a number of defenses to Righthaven's claims, including the argument that the defendants' use of copyrighted material was covered by the doctrine of fair use and, therefore, was not an infringement.

In the previous post, we pointed out some things that website owners can do to avoid being sued for copyright infringement:


  • Assume that everything you find on the internet is subject to a copyright.

  • Don't copy text from another website (or, for that matter, from any other copyrighted source) and post it on your website, even if you give credit to the original source, unless you get permission from the owner of the copyright.

  • Don't post copyrighted images on your website unless you receive permission from the owner of the copyright.

  • Take advantage of the wealth of images that are available free or at low cost from online stock shops such as www.openphoto.net and www.istockphoto.com.

Regardless of how successful the Righthaven defendants are in their attempts to fight back, these tips remain valid. You do not want to be sued for copyright infringement, even if you might ultimately prevail in that lawsuit. It can be very expensive to ultimately prevail. It's better not to be sued in the first place. But if you are sued, you should understand and take advantage of all the weapons that are available to you, both defensive and counteroffensive weapons.

If your small business or nonprofit organization needs legal advice about its website, copyright licenses, or other matters, please feel free to contact our office for an initial consultation with an attorney. The cost is very reasonable.