Screenshot detail above from the nonprofit Electronic Frontier Foundation (EFF) website announces the EFF and Democratic Underground's counterclaim to The Las Vegas Review-Journal's lawsuits. (Credit: EFF)

Earlier this summer, a Las Vegas newspaper and a copyright protection company’s lawsuits against websites using the newspaper’s content generated media controversy.  Not only was the copyright protection company, Righthaven, acting for the newspaper in chasing down misuses of copyrighted content, but also the lawsuits were reportedly to be filed without first sending takedown notices.

This week, the newspaper, The Las Vegas Review-Journal, has been “hit with a counterclaim over its online copyright infringement lawsuit campaign” and copyright protection company Righthaven has been accused of copyright fraud, The Las Vegas Sun reported.

The Las Vegas Sun’s Sept. 28 article detailed the latest twist in the copyright battle, noting that as of Sept. 27, Righthaven has filed 141 lawsuits against U.S. and Canadian websites.

Righthaven had been finding “online infringements” of Review-Journal content and then getting the copyrights from Stephens Media (which owns Review-Journal) and suing.

As the Las Vegas Sun tells it, the nonprofit Electronic Frontier Foundation (EFF) finds the Review-Journal/Righthaven lawsuits bad for free Internet speech because they sue before requesting content is removed “as is the standard practice in the U.S. newspaper industry.”

“This case is a particularly abusive instance of a broad and aggressive strategy by Stephens Media, working in conjunction with its ‘little friend’ Righthaven as its front and sham representative, to seek windfall recoveries of statutory damages and to exact nuisance settlements by challenging a fair use of an excerpt of an article that Stephens Media makes freely available on the Internet, and which it encourages its users to ‘Share & Save’ at least 19 different ways,” EFF’s counterclaim reads.

The Las Vegas Sun further noted that EFF’s counterclaim accuses Righthaven of filing lawsuits “in hopes of intimidating defendants into quickly settling for thousands of dollars.”  RIghthaven is reported to sue for around $150,000 and then settling for $5,000.

The Las Vegas Sun reported Stephens Media vice president and general counsel Mark Hinueber wrote in an e-mail that the company doesn’t “comment on pending ligitation” and hasn’t received the counterclaim yet.

The EFF announced in a Sept. 28 press release that it would be helping represent Democratic Underground, an online political forum sued by Righthaven.  Democratic Underground is being sued because a user re-posted five sentences of a Review-Journal article, but the site argues that fair use protects the user’s posting of the section.

The U.S. copyright office explains the fair use practices.

“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

“The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

• “The nature of the copyrighted work
• “The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• “The effect of the use upon the potential market for, or value of, the copyrighted work”

The full EFF/Democratic Underground counterclaim can be read here on the Electronic Frontier Foundation website.

TechDirt explained that a “key part” of the counterclaim ties Stephens Media, the Review-Journal’s parent company, into the lawsuit.

“One interesting point shows that Righthaven claims to buy the copyright from Stephens Media on the stories it sues over, but the stories still show up on the LVRJ site saying ‘Copyright © Las Vegas Review-Journal.’ Thus, the EFF suggests that there’s a false copyright notice involved here.,” TechDirt noted.

Further, TechDirt found it “amusing” that Righthaven has previously OK’ed the use of two paragraphs from a story as “fair use” (although TechDirt added that definition is “arbitrary and has nothing to do with what the law actually says”).  Meanwhile, Righthaven’s suit against Democratic Underground is over five of fifty sentences reposted — which would fall into Righthaven’s self-described “fair use” category.

iMediaEthics wrote in June about the Review-Journal’s 26 (at the time) lawsuits filed against websites for republishing Review–Journal material.

Review-Journal publisher Sherman Frederick’s May 28 column addressed the lawsuits, noting that  “If there’s one thing that is ‘the essence’ of a newspaper it is content — the news, information, pictures and opinion that makes any given newspaper worth a reader’s time and money.”

He further explained that the Review-Journal contracted RIghthaven to find Review-Journal content on other websites.

As MediaPost reported May 16 that Righthaven had reportedly been suing before requesting the content be removed was an “extremely unusual” course of action.

Las Vegas Sun later reported Sept. 29 that despite the new controversy, Righhthaven has sued three more websites for copyright infringement, bringing “the total to at least 144 lawsuits since March.”

iMediaEthics is asking The Las Vegas Review-Journal, EFF and Democratic Underground for further comments.