silver matrix answer to righthaven copyright infringement lawsuit

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HECTOR J. CARBAJAL II Nevada Bar No. 6247 CARBAJAL & MCNUTT, LLP 625 South Eighth Street Las Vegas, Nevada 89101 Telephone: (702) 384-1170 Facsimile: (702) 384-5529 [email protected] Attorneys for Defendant Silver Matrix, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

RIGHTHAVEN, LLC, a Nevada limited-liability company, Plaintiff, vs. SILVER MATRIX, LLC, a Delaware limited liability company; and JUSTIN BEECH, an individual

Defendant.

)))))))))))))

CASE NO.: 2:10-cv-01281

ANSWER

Defendant Silver Matrix LLC (“Silver Matrix”) (“Defendant”) hereby responds to

the Complaint brought by Plaintiff Righthaven LLC (“Plaintiff”)1 as follows:

NATURE OF ACTION

1. Defendant admits that Plaintiff has alleged claims arising under the

Copyright Act.

PARTIES

2. Defendant is without knowledge sufficient to form a belief as to the truth of

the allegations of paragraph 2 of the Complaint and, therefore, denies the same.

1 Defendant Justin Beech was never served Plaintiff’s Summons and Complaint.

Case 2:10-cv-01281-GMN-PAL Document 9 Filed 09/09/10 of 12

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the allegations of paragraph 3 of the Complaint and, therefore, denies the same.

4. Defendant admits that Silver Matrix LLC is, and has been at all times

relevant to this lawsuit, a limited liability company of the State of Delaware.

5. Defendant admits that Silver Matrix LLC owns the domain name

www.dslreports.com and otherwise denies the allegations of paragraph 5 in the Complaint in

its entirety.

6. Defendant denies the allegations contained in paragraph 6 of the Complaint

but admits that Beech is an owner and Founder of Silver Matrix LLC.

7. Defendant denies the allegations in paragraph 7 of the Complaint, specifically

that it owns the copyright in all material posted by third parties. Silver Matrix is the

publisher of dslreports.com, a consumer news website and forum for consumer comment

and opinion focusing on broadband services, among other things. Copyright notices do not

“proclaim” or otherwise indicate that the publisher is the “owner” of all materials that

appear on the website.

JURISDICTION

8. Defendant admits that this Court has subject matter jurisdiction to hear

copyright claims, but believes that this Court should decline to exercise it in the abusive

circumstances of this case and other cases similarly situated. Plaintiff’s business model

appears to consist of filing high volumes of small claims copyright actions against numerous

out-of-state defendants who must retain counsel to defend them at costs that far exceed the

value of the claims at issue. Plaintiff does not appear to seek or even ask for the take-down

of their works but sue without advance notice in order to impose high transaction costs on

anyone who would seek to defend themselves. Whether or not there is jurisdiction and

whether or not there is merit to the claim or likely defenses, Plaintiff seems to rely on the


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cost of defense to extract settlements that exceed the fair or reasonable value of the claim.

The practice is abusive and the Nevada District Court should not take jurisdiction of such

massive and parasitical abuse of its judicial resources.


the allegations of paragraph 9 of the Complaint.


the allegations of paragraph 10 of the Complaint.

11. Defendant denies the allegations in paragraph 11 of the Complaint including

the allegations that it “willfully copied on an unauthorized basis the Work.” And Defendant

denies knowledge sufficient to form a belief as to the truth of the balance of the allegations

therein.

12. Defendant denies the allegations in paragraph 12 of the Complaint.

Defendant never posted or displayed the Work; a third party posted the Work at some point

without Defendant’s knowledge and Defendant removed the copy of the Work as soon as it

learned of Plaintiff’s claim, which is consistent with the website’s longstanding policy.

13. Defendant denies knowledge and information sufficient to form a belief

concerning the truth of the allegations contained in paragraph 13 of the Complaint.




17. Defendant denies the allegations in paragraph 17 of the Complaint. The

Website is not the “habitual subject of postings by others of copyright-infringing content”

and Plaintiff has no colorable or good faith factual basis for pleading that statement. Plaintiff

has no knowledge of the content of Silver Matrix website or of Silver Matrix practices. The

allegation is based solely on Plaintiff’s generalization about all websites that allow third


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party postings and is not based on any knowledge that Plaintiff has about Silver Matrix’s

website.


Silver Matrix website is rarely used by third parties in ways that would reasonably appear to

be infringing of any third party rights in copyright. In the event that fair and well-founded

complaints are presented to Silver Matrix identifying potentially infringements of copyright,

Silver Matrix responds promptly to take such potential infringements down off the website.

There are numerous forums for the exchange of thoughts and opinions of forum participants.

It is not reasonably possible to monitor all threads on all forums at all times and

infringements of copyright are not always readily evident or apparent: Some uses are

approved or licensed or otherwise consented to, some uses are fair uses and some uses

involve use of public domain materials and information and materials that are not

copyrightable. Most postings by third parties are proper exchanges of information and

opinion. Moreover, the burden of policing copyright infringement—identifying the

potentially infringing material and adequately documenting infringement on the Internet—

lies squarely on the owners of the copyright, who are in the best position to identify

infringements. Silver Matrix’s website is a consumer news and information website in which

third parties exchange views and information. It is not a venue for infringers as Plaintiff

without support unreasonably supposes.








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infringements. Silver Matrix website is a consumer news and information website in which


















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infringements. Silver Matrix website is a consumer news and information website in which



21. Defendant denies the allegations in paragraph 21 of the Complaint and

reallege their answers to paragraphs 18 through 20 above. Plaintiff’s allegations in this

paragraph of the Complaint are plead in willful blindness to the requirement that pleadings

of a complaint must be supported with reasonable investigation and good faith assertions of

fact rather than threadbare formulaic and unsupported conclusions of law – which Plaintiff

repeats in all of its form pleadings without regard for the facts.

VENUE

22. Defendant denies the allegations in paragraph 22 of the Complaint. Nevada

would be a particularly inappropriate venue given the undue burden and expense it would

impose on the Defendant to litigate this case. The Defendant’s staff and operations are

located in the Greater New York area. Further, the third-party poster of the Work appears to

be based in New Jersey, according to his published post. Finally, the eight replies to his post

are from states outside of Nevada or from another country, according to their postings.

23. Defendant denies the allegations in paragraph 23 of the Complaint. But it is

without sufficient first-hand information with which to form a belief concerning the truth of

the balance of the allegations and on that basis denies them in their entirety.


FACTS

25. Defendant denies knowledge sufficient to form a belief as to the truth of the

allegations of paragraph 25 of the Complaint.




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30. Defendant was not aware that a third party had posted the Work on the Silver

Matrix website until it was informed of the claim through this lawsuit (not through a notice

and takedown letter), at which time it removed the third party posting, which is consistent

with the website’s longstanding policy. To that extent, Defendant admits that it did not seek

permission to post the Work from Plaintiff to post the Work and it was unaware that such

consent might be needed.

31. Defendant was not aware that a third party had posted the Work on the Silver

Matrix website until it was informed of the claim through this lawsuit (not through a notice

and takedown letter), at which time it removed the third party posting. To that extent,

Defendant admits that it did not seek permission to post the Work from Plaintiff to post the

Work and it was unaware that such consent might be needed. But Defendant denies

knowledge sufficient to form a belief as to whether the Plaintiff had expressly or implicitly

provided approval or permission for use of the Work.

CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT

32. Defendant repeats and realleges its answers to all of the allegations referred

to in paragraph 32 of the Complaint.

33. Defendant denies knowledge sufficient to form a basis for belief as to the

truth of the allegation of paragraph 33 of the Complaint.


truth of the allegation of paragraph 34.


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37. The allegations contained in paragraph 37 set forth a legal conclusion to

which no response is required. To the extent a response is required, Defendant denies the

allegations herein. But it is without sufficient first-hand information with which to form a

belief concerning the truth of the balance of the allegations and on that basis denies them in

their entirety.





their entirety.




belief concerning the truth of the balance of the allegations and on that basis deny them in

their entirety.





their entirety.

41. Defendant denies the allegations contained in paragraph 41 of the Complaint.


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44. Defendant denies the allegations in paragraph 44 of the Complaint and notes

that the Work is no longer on the Silver Matrix website.

45. Defendant specifically denies any allegation contained in the Complaint,

which it has not specifically admitted herein.

46. Defendant specifically denies that Righthaven is entitled to any of the relief

called for in the Prayer for Relief.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

1. This Court lacks personal jurisdiction over the Defendant. The Defendant

does not transact business in, nor do the Defendant’s direct activities in or to Nevada, or to

residents of Nevada. There is no evidence that anyone in Nevada, save Plaintiff’s counsel,

read or downloaded the Work from the little-read and short-lived forum thread posted by a

third party. Plaintiff’s allegations regarding jurisdiction are not based on reasonable inquiry

or good faith assertions of fact regarding this case or this Defendant but are solely the

formulaic boiler-plate repetitions of unsupported legal elements and conclusions.

SECOND AFFIRMATIVE DEFENSE

2. The Defendant and Justin Beech were not the Publisher of any alleged

infringement of Righthaven’s copyrighted work. The Defendant and Justin Beech had no

prior knowledge of the alleged infringement until they became aware of the Plaintiff’s claim

though this lawsuit, at which point it was removed, as per the website’s policy.

THIRD AFFIRMATIVE DEFENSE

3. Any alleged infringement by Defendant corporate entity, Silver Matrix LLC,

a limited liability company of the state of Delaware, was innocent.


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FOURTH AFFIRMATIVE DEFENSE

4. The alleged use of the Work, to the extent it was used, constitutes Fair Use.

FIFTH AFFIRMATIVE DEFENSE

5. Plaintiff’s claims are barred based on an implied license.

SIXTH AFFIRMATIVE DEFENSE

6. Plaintiff’s claims are barred based on waiver and estoppel.

SEVENTH AFFIRMATIVE DEFENSE

7. Any damages alleged to be suffered by Plaintiff have been caused by

Plaintiff’s own conduct, and not be any conduct attributable to Defendant.

EIGHTH AFFIRMATIVE DEFENSE

8. Plaintiff has failed to mitigate its damages, if any and delayed bringing the

claim to Defendant’s attention when, among other things, it knew that Defendant and other

like Defendants would have likely promptly removed the Work without the need of

litigation and upon the receipt of a simple and less costly inquiry or cease and desist letter.

Plaintiff’s costs and fees in initiating the action were needless and unreasonable.

NINTH AFFIRMATIVE DEFENSE

9. Any alleged infringement by Defendant was de minimis.

TENTH AFFIRMATIVE DEFENSE

10. Plaintiff’s Complaint is barred due to the doctrine of Copyright Misuse.

Among other things, Plaintiff is not seeking to protect its copyright or to stop infringing

activity. It did so to obtain money in excess of the fair and reasonable value of the claimed

infringement and to get compensation for its needless and punitive expenditure of legal and

filing fees.

///

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ELEVENTH AFFIRMATIVE DEFENSE

11. The Court lacks personal jurisdiction over Justin Beech because he has never

been served with any copy of the Summons and Complaint.

PRAYER FOR RELIEF

WHEREFORE, Defendant Silver Matrix LLC prays for relief as follows:

1. That the Court dismiss the Complaint with Prejudice.

2. That Defendant be awarded such other relief as this Court deems just and proper:

a. For attorney’s fees as provided by law;

b. For cost of suit as provided by law; and

c. For such other and further relief as the Court deems just and proper.

Respectfully submitted,

DATED this 9th day of September, 2010. CARBAJAL & MCNUTT, LLP

/s/ Hector J. Carbajal II .

HECTOR J. CARBAJAL II Nevada Bar No. 6247 625 South Eighth Street Las Vegas, Nevada 89101 [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of September, 2010, I served a copy of the

foregoing ANSWER by mailing a copy by United States Postal Service, postage prepaid

and/or via electronic mail through the United States District Court’s CM/ECF system to the

following at their last known address and e-mail: Steven A. Gibson, Esq. Righthaven, LLC 9960 West Cheyenne Avenue, Suite 210 Las Vegas, Nevada 89129-7701 [email protected] Attorneys for Plaintiff Righthaven, LLC /s/ Jacky Varela An Employee of Carbajal & McNutt, LLP


silver matrix answer to righthaven copyright infringement lawsuit

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