DiBiase Answer and Counterclaim

Case 2:10-cv-01343-RLH-PAL Document 19 Filed 10/29/10 Page 1 of 9
1 COLLEEN BAL (pro hac vice pending) KURT OPSAHL (pro hac vice)
cbal@wsgr.com kurt@eff.org
2 BART E. VOLKMER (pro hac vice pending) CORYNNE MCSHERRY (pro hac vice)
bvolkmer@wsgr.com kurt@eff.org
3 WILSON SONSINI GOODRICH & ROSATI ELECTRONIC FRONTIER FOUNDATION
650 Page Mill Road 454 Shotwell Street
4 Palo Alto, California 94304 San Francisco, California 94110
Telephone: (650) 493-9300 Telephone: (415) 436-9333
5 Facsimile: (650) 493-6811 Facsimile: (415) 436-9993
6
CHAD BOWERS
7 bowers@lawyer.com
CHAD A. BOWERS, LTD
8 Nevada State Bar No. 7283
3202 West Charleston Boulevard
9 Las Vegas, Nevada 89102
Telephone: (702) 457-1001
10
Attorneys For Defendant & Counterclaimant
11 THOMAS A. DIBIASE
12
UNITED STATES DISTRICT COURT
13
DISTRICT OF NEVADA
14
15 RIGHTHAVEN LLC, a Nevada limited- ) CASE NO.: 2:10-cv-01343-RLH-PAL
liability company, )
16 ) DEFENDANT AND
Plaintiff, ) COUNTERCLAIMANT THOMAS A.
17 ) DIBIASE’S ANSWER AND
v. ) COUNTERCLAIM
18 )
THOMAS A. DIBIASE, an individual, ) JURY DEMAND
19 )
Defendant. )
20 )
)
21 )
THOMAS A. DIBIASE, an individual, )
22 )
Counterclaimant, )
23 v. )
)
24 RIGHTHAVEN LLC, a Nevada limited- )
)
25 liability company, )
)
26 Counter-defendant. )
)
27 )
28
1 ANSWER
2 Defendant Thomas A. DiBiase (“Mr. DiBiase”) responds to Plaintiff Righthaven LLC’s
3 (“Righthaven”) Complaint as follows:
4 1. Mr. DiBiase admits that Righthaven brings this action pursuant to the Copyright
5 Act of 1976. Mr. DiBiase denies that he has committed copyright infringement.
6 2. Mr. DiBiase lacks knowledge or information sufficient to form a belief about the
7 truth of the allegations contained in paragraph 2 of the Complaint and therefore denies them.
10 4. Mr. DiBiase denies that he is or has been identified as the “owner” of the domain
11 name “nobodycases.com” through the content of that website or by Exhibit 1 of the Complaint.
12 Mr. DiBiase admits that a message from Mr. DiBiase on the website “nobodycases.com” states:
13 “Welcome to my website!”
14 5. Mr. DiBiase admits that the Court has subject-matter jurisdiction over this action.
19 8. Mr. DiBiase denies that he willfully copied, on an unauthorized basis, the article
20 appearing at Exhibit 2 of the Complaint. Mr. DiBiase lacks knowledge or information sufficient
21 to form a belief about the truth of the allegations concerning the source of the article appearing at
22 Exhibit 2 of the Complaint and therefore denies them.
23 9. Mr. DiBiase denies the allegations contained in paragraph 9 of the Complaint.
24 10. Mr. DiBiase denies that he has committed copyright infringement. Mr. DiBiase
25 lacks knowledge or information sufficient to form a belief about the truth of the remaining
26 allegations contained in paragraph 10 of the Complaint and therefore denies them.
27 11. Mr. DiBiase admits that the subject matter, at least in part, of the article appearing
28 at Exhibit 2 of the Complaint concerns a death-penalty sentence that a jury returned after
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1 convicting a man of murdering his wife. Mr. DiBiase denies the remaining allegations contained
2 in paragraph 11 of the Complaint.
14 20. Mr. DiBiase admits that on July 27, 2010, the United States Copyright Office
15 issued copyright registration number TX0007182385, which lists Righthaven LLC as the
16 copyright claimant for a work entitled “Man who killed wife sought ultimate sentence.” Mr.
17 DiBiase lacks knowledge or information sufficient to form a belief about the truth of the
18 remaining allegations contained in paragraph 20 of the Complaint and therefore denies them.
20 22. Mr. DiBiase admits that he did not expressly seek permission to use the article
21 appearing at Exhibit 2 of the Complaint. Mr. DiBiase denies that such permission was not given
22 impliedly. Mr. DiBiase further denies any implication that such permission was necessary.
24 CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT
25 24. Mr. DiBiase incorporates by reference paragraphs 1-23 above.
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9 DEFENSES
10 FIRST DEFENSE (LICENSE)
11 Righthaven’s claims are barred in whole or in part by licenses, express and implied,
12 granted or authorized to be granted by Righthaven and/or the predecessor(s)-in-interest of the
13 work-in-suit.
14 SECOND DEFENSE (FAIR USE)
15 Righthaven’s claims are barred in whole or in part by the doctrine of fair use.
16 THIRD DEFENSE (FAILURE TO MITIGATE)
17 Righthaven’s claims are barred in whole or in part because Righthaven and/or the
18 predecessor(s)-in-interest of the work-in-suit have failed to mitigate their damages, if any.
19 FOURTH DEFENSE (FAILURE TO STATE A CLAIM)
20 Righthaven’s prayer for relief asking the Court to order the registrar of the domain
21 “nobodycases.com” to lock that domain and transfer control of it to Righthaven fails to state a
22 claim on which relief can be granted. Righthaven’s prayer for relief asking the Court to award it
23 attorney’s fees fails to state a claim on which relief can be granted.
24 FIFTH DEFENSE (INNOCENT INTENT)
25 Righthaven’s damages, if any, are limited by Mr. DiBiase’s innocent intent.
26 SIXTH DEFENSE (COPYRIGHT MISUSE)
27 Righthaven’s claims are barred in whole or in part by the doctrine of copyright misuse.
28
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1 SEVENTH DEFENSE (ILLEGALITY)

2 Righthaven’s claims are barred in whole or in part by the doctrine of illegality.
3 EIGHTH DEFENSE (ESTOPPEL)
4 Righthaven’s claims are barred in whole or in part by the doctrine of estoppel.
5 NINTH DEFENSE (WAIVER)
6 Righthaven’s claims are barred in whole or in part by the doctrine of waiver.
7 TENTH DEFENSE (UNCLEAN HANDS)
8 Righthaven’s claims are barred in whole or in part by the doctrine of unclean hands.
9 ELEVENTH DEFENSE (LACHES)
10 Righthaven’s claims are barred in whole or in part by the doctrine of laches.
11 TWELFTH DEFENSE (BARRATRY AND CHAMPERTY)
12 Righthaven’s claims are barred in whole or in part because Righthaven is engaged in
13 barratry, champerty, and maintenance.
14 COUNTERCLAIM
15 Defendant DiBiase brings this Counterclaim against Plaintiff and Counterdefendant
16 Righthaven LLC (“Righthaven”).
17 JURISDICTION
18 1. The Court has jurisdiction over this Counterclaim pursuant to 28 U.S.C. §§ 1331,
19 1338, and 2201.
20 INTRODUCTION
21 2. This case is part of series of abusive lawsuits filed by Righthaven in furtherance of
22 its business model of purchasing copyrights to news articles, and then filing copyright lawsuits
23 against individuals and small entities, using the threats of statutory damages, domain name
24 seizures and attorneys fees to force settlements, even when, as in this case, the defendant has not
25 infringed the copyright.
26 PARTIES
27 3. Righthaven claims a copyright, by assignment from Stephens Media LLC

28 (“Stephens Media”), in the news article dated June 11, 2010 that bore the title “Retired teacher
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1 gets death penalty for wife’s murder,” and the byline of Doug McMurdo, a copy of which is
2 Exhibit 2 to the Complaint (the “News Article”). Righthaven asserts that Stephens Media, the
3 publisher of the Las Vegas Review-Journal (“LVRJ”), was the “author” of the News Article as a
4 work made for hire.
5 4. Steven Gibson formed Righthaven in March 2010 for the express purpose of filing
6 lawsuits for copyright infringement.
7 5. Mr. DiBiase believes and therefore alleges that, as of the filing of this Answer and
8 Counterclaim, Righthaven has not engaged in the business of licensing copyright rights other than
9 in the context of litigation.
10 6. Mr. DiBiase believes and therefore alleges that Righthaven does not have a regular
11 business model of deriving revenue from licensing copyright rights with respect to any
12 information or content other than in connection with litigation, if at all.
13 7. Mr. DiBiase believes and therefore alleges that Righthaven’s sole revenue is
14 settlements from the copyright infringement cases it has filed.
15 8. Mr. DiBiase believes and therefore alleges that, as of the filing of this Answer and
16 Counterclaim, Righthaven has filed at least 150 lawsuits to enforce copyrights it has acquired.
17 9. Mr. DiBiase believes and therefore alleges that Righthaven has not published any
18 works with a copyright notice identifying itself as copyright owner of the published work.
19 10. For over 12 years Mr. DiBiase was an Assistant United States Attorney in the
20 District of Columbia and prosecuted homicide cases for most of those years.
21 11. In January of 2006, Mr. DiBiase prosecuted the second “no body” murder case
22 tried in D.C. and has been interested in “no body” cases ever since.
23 12. A “no body” murder case is a homicide prosecution where the victim is missing
24 and presumed dead, but no body is found.
25 13. Mr. DiBiase has consulted with law enforcement agencies throughout the United
26 States and Canada on “no body” murder prosecutions.
27 14. Mr. DiBiase publishes a website located at http://www.nobodymurdercases.com/

28 (the “No Body Website”).
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1 15. The No Body Website tracks “no body” murder cases, trials and investigations.
2 16. Through the No Body Website, Mr. DiBiase publishes a table of “no body” murder
3 trials that lists over 300 “no body” murder trials in the United States.
4 17. Part of the No Body Website is a blog that publishes information on “no body”
5 murder cases, trials and investigations.
6 NO INFRINGMENT
7 18. Righthaven has asserted that Mr. DiBiase has infringed its copyright in the News
8 Article on the No Body Website.
9 19. The No Body Website is non-commercial.
10 20. Mr. DiBiase publishes the No Body Website for the purpose of assisting
11 prosecutors and homicide investigators in bringing justice to the friends and families of “no body”
12 murder victims.
13 21. Assisting prosecutors and homicide investigators in bringing justice to the friends
14 and families of “no body” murder victims benefits the public interest.
15 22. The content of the News Article is predominantly informational, factual or news.
16 23. Mr. DiBiase believes and therefore alleges that Righthaven does not reproduce in
17 copies; make derivative works of; distribute copies to the public by sale or other transfer of
18 ownership, or by rental, lease, or lending; or publicly display the News Article.
19 24. Mr. DiBiase believes and therefore alleges that Righthaven does not reproduce in
20 copies; make derivative works of; distribute copies to the public by sale or other transfer of
21 ownership, or by rental, lease, or lending; or publicly display any of the copyrighted works it
22 owns.
23 25. Mr. DiBiase believes and therefore alleges that Righthaven has no specific plan to
24 reproduce in copies; make derivative works of; distribute copies to the public by sale or other
25 transfer of ownership, or by rental, lease, or lending; or publicly display any of the copyrighted
26 works it owns.
27 26. Mr. DiBiase believes and therefore alleges that Righthaven has not attempted to
28 sell or license copies of the News Article.
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1 27. Mr. DiBiase believes and therefore alleges that Righthaven has no specific plan to
2 sell or license copies of the News Article.
3 28. The News Article is, as of the filing of this Answer and Counterclaim, available for
4 no charge on the LVRJ’s website.
5 FIRST CAUSE OF ACTION
6 Declaration of No Copyright Infringement
7 29. Mr. DiBiase incorporates and realleges the paragraphs of the Counterclaim above.
8 30. Righthaven alleges that Defendants willfully infringed Plaintiff’s exclusive rights
9 under 17 U.S.C. § 106(1)-(3), and (5).
10 31. Mr. DiBiase did not infringe any copyright claimed by Righthaven in the News
11 Article.
12 32. Any posting by Mr. DiBiase of the News Article, or any excerpt thereof, on the No
13 Body website was a fair use.
14 33. Mr. DiBiase has not infringed Plaintiff’s rights under 17 U.S.C. § 106(1).
18 37. Mr. DiBiase has not infringed Plaintiff’s claimed copyright in the News Article and
19 is entitled to a declaration to that effect.
20 RELIEF REQUESTED
21 WHEREFORE, Mr. DiBiase respectfully requests the following relief:
22 1. A judgment in favor of Mr. DiBiase denying Righthaven all relief requested in its
23 Complaint in this action and dismissing Righthaven’s Complaint with prejudice;
24 2. A judgment in favor of Mr. DiBiase and against Righthaven on Mr. DiBiase’s
25 Counterclaim;
26 3. Mr. DiBiase be awarded the costs of suit, including reasonable attorney’s fees;
27 and
28
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1 4. That the Court award Mr. DiBiase such other and further relief as the Court
2 deems just and proper.
3 DEMAND FOR JURY TRIAL
4 In accordance with Fed. R. Civ. P. 38(b), Defendants demand a trial by jury on all issues
5 so triable.
6
7 Dated: October 29, 2010 Respectfully submitted,
8 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
9
10 By: /s/ Colleen Bal
COLLEEN BAL (pro hac vice pending)
11 BART E. VOLKMER (pro hac vice pending)
650 Page Mill Road
12 Palo Alto, California 94304
13 Counsel has complied with LR IA 10-2
14 ELECTRONIC FRONTIER FOUNDATION
15 By: /s/ Kurt Opsahl
Kurt Opsahl (pro hac vice)
16 Corynne McSherry (pro hac vice)
454 Shotwell Street
17 San Francisco, CA 94110
18
CHAD A. BOWERS, LTD.
19
By: /s/ Chad Bowers
20 Chad A. Bowers
NV State Bar Number 7283
21 3202 W. Charleston Blvd.
Las Vegas, Nevada 89102
22
Attorneys for Thomas A. DiBiase
23
24
25
26
27
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Case 2:10-cv-01343-RLH-PAL Document 19 Filed 10/29/10 Page 1 of 9

1 SEVENTH DEFENSE (ILLEGALITY)

27 3. Righthaven claims a copyright, by assignment from Stephens Media LLC

27 14. Mr. DiBiase publishes a website located at http://www.nobodymurdercases.com/

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