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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Righthaven LLC, Plaintiff, v. Dana Eiser, Defendant. I. I N T R O D U C T I O N Plaintiff initiated this action with its Complaint, Dkt. #1, on December 2, 2010. Defendant answered and counterclaimed pro se on January 18, 2011. Dkt. #7. Plaintiff failed to file a reply or move to dismiss within the time limits of Rule 12(a), FED.R.CIV.P., and went into technical default in mid-Februaryaround the time Defendant retained counsel. Counsel elected not to pursue the default but instead to file an Amended Answer and Counterclaims (First Amended Answer)as of right under Rule 15(a)(1), FED.R.CIV.P. Dkt. #22. Plaintiff timely responded, filing a motion to dismiss. Dkt. #23.1 Around this time, Plaintiff also sought to amend its Complaint to remove an improper demand for website surrender. Dkt. #30. Plaintiffs motion was unopposed and was granted. Dkt. #33. As a result, it was clear Defendant would have to file a second amended answer and counterclaim, so Plaintiffsmotiontodismisswasmoot.Defendantthereforedidnotfileasubstantiveresponseto the motion to dismiss, but noted its mootness given the procedural posture. Dkt. #28. DEFENDANTSA M E N D E D R ESPO NSE TOPLAINTIFFS M O T I O N T O D ISM ISS C E R T A I N C O U N T E R C L A I MS Civil Action No. 2:10-CV-3075-RMG-JDA

Plaintiffs aggression in the motion to dismiss is almost unbelievable. For example, Plaintiff asks the Court to strike the answer and counterclaim entirely (and to hold Defendant in default) because the First Amended Answer was untimely filed. Dkt. #23 at 1. This claim was entirely without meritthe reason Defendant was able to file an amended pleading as of right was that Plaintiff was in default, a default Defendant did not pursue. Page 1 of 34

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Two days after the Court granted Plaintiffs motion to amend, instead of filing an amended complaint as directed, Plaintiff bizarrely pressed for a ruling on its now-moot motion to dismiss. Dkt. #34. Provingthatnogooddeedgoesunpunished,despiteDefendantsdecision to not pursue a default against Plaintiff, Plaintiff went sofarasto arguethatDefendants plan to file a new answer and counterclaim in responsetoPlaintiffsnewcomplaintwastantamountto aconcessionthatthecurrentCounterclaimsshouldbedismissed.Id. at 2. Defendant replied that this procedure was exactly what the Federal Rules of Civil Procedure required under Rule 15(a)(3), and that if Plaintiff wanted to seek dismissal, it would have to wait until Defendant had actually filed counterclaims. The Court agreed with Defendant, holding a ruling on the motion to dismiss in abeyance until an answer had been filed. Dkt. #35. Defendant filed her Second Amended Answer and Counterclaims (Second Amended Answer)onJune23,2011. Dkt. #53. The Second Amended Answer is a far different and far more comprehensive document than its predecessor, such that the long-ago filed motion to dismiss is partly inapplicable to it. However, Plaintiff did not file a reply or a new motion to dismiss within the time limits prescribed by Rule 15(a)(3), so Defendant concludes that Plaintiff intends to rely solely on the previously-filed motion to dismiss, Dkt. #23. Accordingly, it would appear Defendant is now on the clock for a substantive response to the previously-filed motion to dismiss, Dkt. #23. Such response is respectfully submitted for consideration by this Honorable Court:

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T A B L E O F C O N T E N TS T able of A uthorities .......................................................................................................................3 I. I I. Introduction ...........................................................................................................................1 A nalysis ..................................................................................................................................5 A. B. C. D.

General Considerations .................................................................................................5 What isand is notat issue ........................................................................................8 Removed Counterclaims: Declaratory Judgment, Barratry, and No Good F aith Basis .....................................................................................................................9 Abuse of Process ..........................................................................................................12
i. ii. iii. iv. ULTERIOR PURPOSE .............................................................................................12 WILLFUL ACT IN THE USE OF PROCESS NOT PROPER IN THE REGULAR CONDUCT OF THE PROCEEDING............................................................................16 EVIDENCE OF RIGHTHAVENS ACTIONS IN OTHER CASES ....................................21 OTHER CONSIDERATIONS.....................................................................................22

E.

Unfair Trade Practices ................................................................................................23

i. ii. iii. iv. LOSS OF MONEY OR PROPERTY ............................................................................24 UNFAIR OR DECEPTIVE METHOD, ACT, OR PRACTICE ..........................................27 CONSTITUTIONAL ACTUAL MALICE.....................................................................30 PUBLIC INTEREST .................................................................................................30

F.

Civil Conspiracy ..........................................................................................................32

I I I. Conclusion ...........................................................................................................................33

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T A B L E O F A U T H O R I T I ES E nactments Local Civil Rule 7.05 .....................................................................................................................26 Rule 11, FED.R.CIV.P .....................................................................................................................17 Rule 12, FED.R.CIV.P ............................................................................................................. passim Rule 15, FED.R.CIV.P ................................................................................................................... 1-2 Rule 403, FED.R.EVID ....................................................................................................................22 Rule 404, FED.R.EVID .............................................................................................................. 21-22 Federal C ases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)..................................................................................5, 22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................5 State C ases Austin v. Stokes-Craven Holding Corp., 691 S.E.2d 135 (S.C. 2010) ..........................................33 deBondt v. Carlton Motorcars, Inc., 536 S.E.2d 399 (S.C. Ct. App. 2000) ..................................25 Food Lion, Inc. v. United Food & Commercial Workers Intl Union, 567 S.E.2d 251 (S.C. Ct. App. 2002)...........................................................................................23 Huggins v. Winn-Dixie Greenville, Inc., 153 S.E.2d 693 (S.C. 1967).................................... 12-13 Jeffries v. Phillips, 451 S.E.2d 23 (S.C. Ct. App. 1994) ................................................................31 Mull v. Ridgeland Realty, LLC, 693 S.E.2d 27 (S.C. Ct. App. 2010) ..........................................26 Roddey v. NationsWaste, Inc., 05-UP-472 (S.C. Ct. App. filed July 28, 2005)............................26 Swicegood v. Lott, 665 S.E.2d 211 (S.C. Ct. App. 2008) .......................................................13, 16 Technical Computer Services, Inc. v. Buckley, 844 P.2d 1249 (Colo. Ct. App. 1992) ............................................................................................................................... 25-26 Todd v. S. Carolina Farm Bureau Mut. Ins. Co., 278 S.E.2d 607 (S.C. 1981) ..............................33

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I I. A N A L YSIS

A. General Considerations
This case is an unusual one. Under Defendants theory of the case, Righthaven is a nationwide extortion operation that operates by lying to the federal judiciary and to its targets, falsely claiming ownership of copyrights so as to leverage settlement payments out of those targets. Many of the methods it uses to accomplish the leveraging are independently illegal in and of themselves. While a 12(b)(6) motion only looks to the sufficiency of the allegations and not to their truth, it cannot escape notice that Defendants theory of the case isnt mere conjecture, an educated guess, or even a solid inference based on circumstantial evidence. Given the developments of recent weeks in other Righthaven cases, Defendants theory is an inevitable conclusion drawn from indisputable facts. Many of these facts appear in judicial orders and manyoftherestareestablishedbyRighthavensowndocuments. In large measure, the factual allegations appearing in the Second Amended Answer are no longer allegations but are now established facts of this case. Righthavensmotiontodismissmakestwotypesofargumentsagainstthecounterclaims. First, Righthaven makes the now-standard Twombly-Iqbal argument, but that is off the table givenDefendantsfactually-expansive Second Amended Answer. The second type of argument is in the nature of an affirmative defense: Even if we did it, you cant sue us for it. Before plunging into the nitty-gritty of elements of causes of action, Plaintiffs argument deserves consideration in light of basic principles of tort law. Tort law is often defined as what it isnt, i.e. a claim for damages not premised on a contract. But it is far more than that. The law of tort presumes that people living together in a

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civil society owe each other a duty to not harm one another. And just as equity will not suffer a wrong to be without a remedy, so too does tort law adapt to cover new situations where creative would-be tortfeasors try to rely on technicalities to avoid liability. That is precisely what Righthaven aims for in this case and others. Righthaven is well aware of the natural judicial tendency to give litigants a wide berth based on their litigation conduct. In fact, Righthaven has relied on that wide berth to do things that are absolutely unfathomable to ethical members of the Bar.2 This claim is not intended to be pejorative or uncivil, it is simply the natural and proper conclusion to be drawn from the established facts of this case, and it is highly relevant in the context of a 12(b)(6) motion directed at state-law counterclaims which are partly based on wrongful litigation conduct. This is not puffery, and counsel for the Defendant genuinely fear offending the Court with accusations of this nature. Lawyers rarely accuse one another of improper litigation conduct, and rightly somostlawyersdontengageinit. But just as Righthaven exploits judicial grace, so too does it exploit judicial skepticism that comes with accusations of this type. But undersigned counsel can find no way to sugarcoat the truth of what Righthaven does without Righthaven turning it around as argument in support of dismissal. There are innumerable reported cases in every jurisdiction where a court goes through a formulaic recitation of the ways a litigant can be held liable for litigation conduct before finding, on those facts, no liability. There is a night-and-day difference between those cases and this one. Here, Righthaven has violated multiple criminal statutes and ethics rules, lied to courts, committed perjury, made all manner of frivolous arguments, used baseless threats of sanctions and actual sanctions motionsto intimidate opposing parties, and intentionally and recklessly
2

AsDefendanthasnotedinothercontexts,nocriticismofRighthavenscurrentcounsel,Edward Bertele, is intended. Page 6 of 34

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disregarded practically every principle that in any way prohibits or restrains improper conduct in litigation. As just one brief example from this very case, consider the following representation Righthavens prior counsel made in the motion to dismiss. This was written in March, before Righthavensclientagreementshadbeenmadepublic over their strenuous objections:3 [B]ecause Righthaven is a party to the case and asserts an interest in the copyright at issue, Righthaven cannot be assisting another in prosecuting a suit. Righthaven simply is bringing a suit on its own behalf to enforce its rights in its copyright. Dkt. #23-1 at 16 (emphasis in original). Consider this in light of the just-released MediaNews Group agreement, a Copyright Alliance AgreementprovidingthatMediaNewsGrouphas engage[d] Righthaven to takean Infringement Action against relevant Infringers and return 50% of the net recovery to MediaNews Group. See Dkt. 61-1 at 14 (defining engagement); at 9 1(takeanInfringement Action...)andat 6 7 (50% contingency provision). There is no room for euphemism here. Righthavens representation to this Court is a bald-faced lie. Righthaven had been hired by MediaNews Group to file copyright cases on contingency while simultaneously telling this Courtand othersthat Righthaven cannot be assisting another in prosecuting a suit. Righthaven simply is bringing a suit on its own behalf to enforce its rights in its copyright. And as to the added emphasis on another, well, res ipsa loquitur. Righthaven is a litigant thoroughly unbound by the slightest duty of candor to the tribunal. Righthaven has pursued this strategy of dishonesty before this Court just as it has in

The Stephens Media agreement, Dkt. #60-1, was unsealed in mid-April; the MediaNews Group agreement, Dkt #61-1,was released this past Friday, July 8th. Page 7 of 34

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Nevada and Colorado. In one sense all such lies are equal, but as Orwell would say, some are more equal than others. Righthaven is not a business owner sued vicariously, lying to avoid a back-breaking verdict that will keep his kids from going to college. Righthaven is not a criminal defendant desperate to avoid a lengthy prison term over an uncontrollable drug addiction. Righthaven is not an embarrassed spouse committing perjury to hide adultery. Those lies are at least understandable, though by no means acceptable. But Righthavens lies arent for self-protectiontheir sole purpose is to separate other people from their money. The lies worked for a while, but now the jig is up. And for all Righthavens claims of a new and innovative business model, the reality is that Righthaven is just a gang of con artists, and bad ones at that. This brand of fraudulent, intentional misconduct usually opens the door to liability on quite a few different theories, and the Second Amended Answer asserts a large number of them. However, the motion to dismiss is applicable only to three: abuse of process, unfair trade practices, and civil conspiracy. The reasons the motion should be denied are presented as follows. Defendant also respectfully submits that there are far more facts pled in the Second Amended Answer than are analyzed below. Defendant has chosen to focus on the matters below because they can be presented with the most clarity.

B. What isand is notat issue.

Plaintiffs motion to dismiss, also captioned as a motion to strike, seeks three different remedies: a dismissal of six counterclaims under Rule 12(b)(6), a striking of one of those same counterclaims under Rule 12(f), and a dismissal or striking of the First Amended Answer, Dkt. #22, as untimely under Rule 15(a)(2).

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The last remedy, to dismiss or strike the First Amended Answer as untimely, is now entirely moot. As described above, Plaintiff sought leave to amend its complaint, leave was granted, and Defendant timely filed a Second Amended Answer. While Defendant was obviously not untimely with the First Amended Answer, that train left the station when Plaintiff obtained leave to amend the complaint, giving Defendant the right to file a new answer and counterclaim. Further, with regard to the six counterclaims in the First Amended Answer, only three appear in the Second Amended Answer. The claims for barratry and no good faith basis do not appear, and while a declaratory judgment counterclaim does appear, it is on an entirely different subject. The foregoing portions of the motion to dismiss must be denied as moot.

C. Removed Counterclaims: Declaratory Judgment, Barratry, and No Good F aith Basis

In the First Amended Answer, Defendant sought a declaratory judgment that she had not infringedRighthavenscopyright.Dkt. #22 at 4, 20 (Defendantisentitledtoadeclarationthat Defendant hasnot infringedPlaintiffs copyright). DespitePlaintiffsprotestations,this was a perfectly legitimate tactical move, because Plaintiffs copyright infringement claim could be subject to an adjudication not involving the merits, i.e. a 12(b)(6) dismissal. Concerned that Plaintiff would simply beef up its complaint and try againin hindsight, a very valid concern given Plaintiffs recent litigation conductDefendant sought a declaration that she had not infringed the copyright. Eisers original strategy was based upon an identical defense strategy in Righthaven v. Democratic Underground. Righthaven strenuously objected to the counterclaim in that case too, but the court overruled the objection: Righthaven and Stephens Media have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar, with defendants who do not want to incur the costs of defending the lawsuits, are now offended when someone has turned the tables on

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them and insisting on a judgment in their favor rather than a simple dismissal of the lawsuit. Order of 4-15-2011, Righthaven v. Democratic Underground, 2:10-cv-01356-RLH-GWF (D. Nev.) (HUNT, J.). But quite a bit has changed in the Righthaven saga since Eiser elected to pursue that strategy. The First Amended Answer was filed on February 25, 2011. As described in Defendants12(b)(1)motiontodismiss,Dkt.#60,itwasnotuntilmid-April that the true, sham nature of Righthavens assignments was revealed. And only last month were these assignments emphatically rejected by judges in the District of Nevada, just days before Defendant filed the Second Amended Answer. Withallofthis,EisersmaindefensestrategyhaschangedfromIdidntdoitstill a great backup plantoRighthavendoesnthavestanding.The reason for this is simple: it does Eiser no good to prove in an action against Righthaven that she didnt infringe, because Righthaven isnt the true copyright holder and never will be. Further, the effect of such a judgment out of this action on the true copyright holder, MediaNews Group Inc., is ambiguous at best.4 Eiser has no interest in needlessly complicating this matter, and in fact has carefully couched her Rule 12(b)(1) dismissal motion to isolate the standing issue for adjudication and, if
4

If Defendant obtained a declaratory judgment of noninfringement on the merits in this action, nothing stops MediaNews Group from filing a copyright infringement action of its own against Defendantsorganization,theLowcountry9/12Group, or the individual who actually posted the Rosen Letter. If MediaNews Group sued Defendant Eiser, Eiser would argue that it would be inequitableto haveto defendthisallegationagainstMediaNewsGroupsagent andthenagain against MediaNews Group, and Eiser would hopefully prevail, but it would not be a certainty. However, that sort of estoppel argument would be much harder to make if MediaNews Group did not file against Eiser and only sued the nonprofit or the person who actually posted the Rosen Letter. Judicial estoppel arguments are at their nadir when there is complete non-mutuality, i.e. when the new plaintiff and new defendant are totally different parties from the original plaintiff and original defendant. Page 10 of 34

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successful, permanently resolve the infringement issue in this case. Therefore, Eiser elected not to pursue a counterclaim for a declaratory judgment of noninfringement in the Second Amended Answer. Eiser certainly intends to defend herself against the copyright claim if she is unsuccessful on her 12(b)(1) claim, but no longer seeks a declaratory judgment of noninfringement even if she obtains a procedural victory over Righthaven.5 Rather, the new declaratory judgment action seeks a declaration that Righthavens business model is illegal. Dkt. #53 at 60, 529 (DefendantEiserrespectfullyrequeststheCourt declarethatRighthavensbusinessmodelisillegal,atleastinSouthCarolina.).Itistruethatthe next paragraph asks the Court to declare any other matter related to the pleadings and within its discretion, but Defendants intent with this language was to leave the Court the discretion to find facts and make legal conclusions relating to Righthavens business operations. Including each andeveryreasonwhyRighthavensbusinessmodelisillegalinthedeclaratoryjudgmentcause of action would have made a 119 page pleading into a 219 page pleading, something Defendant sought to avoid. Now, to clarify matters, Defendant stipulates that it does not seek a declaratory judgment as to noninfringement against Righthaven in its Second Amended Answer. Accordingly, Defendant submits that the argument in Plaintiffs motion to dismiss regarding the original declaratory judgment counterclaim is simply not applicable to the new declaratory judgment counterclaim. In addition, the counterclaims for barratry and no good faith

Accord Order of June 22, 2011, Righthaven v. Barham, 2:10-cv-02150-RLH-PAL (D.Nev.) (HUNT, J.), docketed in this Court as Dkt. #60-7. In that case, Judge Hunt found Righthaven lacked standing because it was not the true owner of the copyright. See generally Dkt. #60-7. Judge Hunt granted Righthavens motion to dismiss a declaratory judgment counterclaim of noninfringement, finding it moot given that Righthaven was not the true owner of the copyright. Id. at 3 (As Righthaven does not hold the . . . copyright, Barham lacks standing to assert his claimagainstRighthavenjustasRighthavenlacksstandingtoassertitspurportedclaim.). Page 11 of 34

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basis have been entirely removed. These portions of the motion to dismiss must therefore be denied as moot.

D. Abuse of Process
Unlike the declaratory judgment claim, the new abuse of process claim is similar to the original, though it reflects a beefed-up factual basis given the intervening revelations from the District of Nevada. See Dkt. #22 at 4 (original abuse of process claim); Dkt. #53 at 79 (new abuse of process claim). The elements of abuse of process in South Carolina are: (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Huggins v. Winn-Dixie Greenville, Inc., 153 S.E.2d 693, 694 (S.C. 1967). Righthavens attack is premised on claims that Defendant has not alleged either of the two elements and that Defendant cannot use factual material from other Righthaven cases in support of its allegations. Righthavensclaimsareincorrect. i. ULTERIOR PURPOSE Righthavensulteriorpurposeisasobviousasitisobviouslypled: 695. Righthaven does not file lawsuits with the intent of seeking the just resolution of legitimate or arguably legitimate claims before a court. 696. Righthavenspurpose,instead,is toscarevictimswith legal process into paying settlements Righthaven is not entitled to. 697. Righthavens ulterior purpose, therefore, is to gain funds through settlements of claims it has no right to compromise nor had any right to file suit over in the first place. Second Amended Answer, Dkt. #53 at 80. Righthaven is arguably collaterally estopped from even denying this. In Righthaven v. Hill, Judge Kane found that Righthaven seeks to use thecourtsasmere[]toolsforencouraging and exacting settlements from defendants cowed by the potential costs of litigationandliability. Order at 2, Dkt. #16, Righthaven v. Hill, 1:11-cv-211-JLK (D.Colo). When coupled with the fact

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that Righthaven does not own the copyrights it sues over, the ulterior purpose is obvious. Righthaven files suits seeking relief it is not legally entitled to for the sole purpose of extracting nuisance-value settlements. If that is not an ulterior purpose, it is hard to see what could be. The South Carolina Supreme Court appears to have first addressed the tort of abuse of process in Huggins. After stating the elements, the Huggins court gave a very detailed analysis of the improper purpose element: The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or club. Id. at 694 (quoting Prosser, Handbook of the Law of Torts, 2d ed. at 668-69). Plaintiffrestsmuchofitsargumentonthestatementthatthereisno liability where the defendant has done nothing more than carry out the process to its authorized conclusions, even thoughwithbadintentions.MotiontoDismiss,Dkt.#23-1 at 10. But in Swicegood v. Lott, 665 S.E.2d 211 (S.C. Ct. App. 2008), the South Carolina Court of Appeals plainly rejected similar relianceonthatsamesentencefromanothercase,callingitanisolatedstatement. Id. at 214. The Swicegood courtwenton:thisstatementshouldnotbeinterpretedtomeanthatnoliability may ever arise where the process is carried to its authorized conclusion. Id. The easiest way to think about the elements of abuse of process is to consider (1) why the plaintiff brought the litigation and (2) what the plaintiff did once the litigation was brought. If a defendant alleges a hidden motive, the first element is satisfied. If a defendant alleges wrongdoing in the litigation related to the hidden motive, the second element is satisfied. Consider Righthavens claimed motive: to vindicate rightsRighthave ns rightsunder the Copyright Act and to recover damages because of the irreparable harm that Righthaven

suffered and would continue to suffer. Dkt. #23-1 at 10-11; Dkt. #36 at 5, 33-34.

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But this was nothing but a giant subterfuge. Righthaven was not asserting its rights under the Copyright Actit didnt have any. And the irreparable harm was suffered (if at all) by MediaNews Group, not Righthaven. When Defendant originally made those claims in her First Amended Answer, they were conclusions based on circumstantial evidence. Now, they are directlyprovedbyRighthavenandMediaNewsGroupsownagreement, the MediaNews Group Copyright Alliance Agreement: Despite any Copyright Assignment, Publisher shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Publisher Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Publisher Assigned Copyrights[.] Dkt. #61-1 at 9-10 6. Righthaven alleged in the Complaint that Eiser had infringed four of Righthavensexclusiverightsunderthe Copyright Act. Dkt. #1 at 4 27-30. Yet because of a

secret agreement, Righthaven had not a single exclusive right to infringe.

The elements of abuse or process require a showing of ulteriorpurpose.The dictionary defines ulterior as being beyond what is seen or avowed intentionally kept concealed. If words have meaning, what Righthaven did in this case is an archetypalexampleofanulterior purpose. Righthaven came to this Court pretending to be the legitimate copyright holder, claimingithadbeenirreparablyharmed(Dkt.#36 at 5, 33-34), while at all times acting as a secret proxy for the actual copyrightholderwhowastherealpartyininterest.Righthavenstrue relationshipwithMediaNewsGroupwasmostdefinitelybeyondwhatisseenoravowedand was, without a doubt, intentionallykeptconcealed. AndtheconcealmentdidntstopaftertheComplaintwasfiled,buthascontinuedrightup through the present. For example, as cited above, Righthaven stated in the very motion to dismiss to which Defendant is responding:

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[B]ecause Righthaven is a party to the case and asserts an interest in the copyright at issue, Righthaven cannot be assisting another in prosecuting a suit. Righthaven simply is bringing a suit on its own behalf to enforce its rights in its copyright. Dkt. #23-1 at 16 (emphasis in original). That was filed on March 11. Righthaven had another chance to come clean when it filed its Amended Complaint on April 7. Not only did Righthaven continuetohidethetruenatureofitsownership,Righthavensformercounselactually added the following allegation, one that does not appear in the original complaint: Righthaven obtained ownership of the copyright in and to the Work through a valid and enforceable assignment from the original owner of the rights in and to the Work (theAssignment).The Assignment granted Righthaven full ownership in and to the copyright to the Work, as well as specifically assigning any and all rights to seek redress for past, present, and future infringements, both accrued and unaccrued, in and to the Work. Amended Complaint, Dkt. #36 at 2, 10 (emphasis added; notably appearing in the Jurisdictionsection). As the old saying goes, one lie begets another. To whatever extent Righthaven might claim that the unadorned ownership claim in the original complaint was a mistake or somehow excusable, to cover up that falsehood Righthavens counsel told far more comprehensive lies, leaving no doubt whatsoever of the ulterior purpose of the litigation. And as of this filing, Righthaven still has made no effort to correct these facts before the Court, and in fact has done nothing at all in this action in two months. A brief comparison with Defendants conduct might be worthwhile. Undersigned counsel inaccurately represented in the First Amended Answer that Eiser had posted the Rosen Letter on the Internet. Eiser was not able to find counsel until she had already filed a pro se answer and counterclaim, and after retention, the deadline for filing amended pleadings was rapidly closing. Undersigned counsel had very limited time to consult with Eiser prior to filing theFirstAmendedAnswerand,quitefrankly,misunderstoodEisersexplanationsthatshehad

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not posted the material. Having no good faith basis to deny the alleged posting, counsel admitted it in the First Amended Answer, despite its damaging nature. Later conversations with Eiser revealed the truth of the matter and counsels mistake. Counsel communicated to Righthaven that Eiser actually didnt display the Rosen Letter, and that fact appeared in the Joint 26(f) Report, Dkt. #38-1at2(EiserdeniesRighthavensclaimsof infringementanddeniesthatEiserdisplayedtheWorkinquestion.).AndwhenEisersSecond Amended Answer was filed, the matter was corrected there too and an explanation provided. Dkt. #53 at 7-8, 55-60 (correcting earlier misstatement).

That is candor to the Court. Counsel had no good faith basis to deny an extremely
damaging fact, and so admitted it. Upon discovering the error, the truth was communicated to the opposing party and subsequently corrected in the record of this Court with explanation. Meanwhile, Righthaven not only makes misrepresentations that are favorable to its position, it tries to cover them up with outright lies. Defendantdoesntjustpresent allegations of an ulterior purpose; Defendant submits indisputable proof. ii. WILLFUL ACT IN THE USE OF PROCESS NOT PROPER IN ii.
THE REGULAR CONDUCT OF THE PROCEEDING

As the Swicegood courtexplained,Thewillfulactelementoftheabuseofprocess tort has been interpreted . . . to consist of three different components: (1) an act that is either willful or overt; (2) in the use of the process; (3) that is ultimately reprehensible because it is either (a) unauthorized or (b) aimed at an illegitimatecollateralobjective.Id. at 215. There is no question that Defendant has properly alleged willful or overt acts. The entire counterclaim rests on allegations of intentional conduct.

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The second component is likewise alleged. Defendant submits that every part of every pleading, motion, etc. where Righthaven holds itself out as the true copyright owner or denies the truenatureofitsrelationshipwithMediaNewsGroupisauseofprocessunderconsideration here. Further, the illegal website demand is a crystal clear example of a use of process. Finally, coupled with this improper process were Righthavensdemands for payment from Defendant $15,000before undersigned counsel made clear Dana Eiser would not simply roll over and pay up. The second component is definitely present. The third component requires a showing that the process is unauthorized or aimed at an illegitimate collateral objective. The counterclaim alleges a variety of ways this is so. For one, it is the product of the unauthorized practice of law in South Carolina, as discussed in the DefendantsRule12(b)(1)motion.Foranother,theclaimsmadeinRighthavenspleadingsare, in many cases, shameless lies. That too would seem to constitute unauthorized process. But perhaps the most offensive example is the illegal website demand. In this case, Righthaven only removed the website demand after defense counsel sent a sanctionsconsultation motion pursuant to Rule 11(c)(2), FED.R.CIV.P,6 despite having conceded in Nevada litigation that the Copyright Act does not authorize such relief. In fact, as discussed in Defendants 12(b)(1) motion, an attorney for Righthaven in Nevada made that concession the very same day the original complaint in this action was filed, but the original complaint in this action nonetheless contained the improper demand.

Undersigned counsel in no way wishes to run afoul of the prohibition in Rule 11(c)(2) that indicates that a motion for sanctions must not be filed or be presented to the court if the challenged matter is withdrawn or appropriately corrected. Id. Counsel is not presenting a motion for sanctions to the Court based on the website demand. But the fact that the website demand was included in the original complaint in this action is of independent legal significance vis--vis various counterclaims and defenses, including abuse of process. The fact that it was later removeddoesnotalleviatePlaintiffsliabilityonabuseofprocess. Page 17 of 34

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Moreover, the reason for the website demand is worth considering. Many Righthaven victims are retired or otherwise on fixed incomes, and even many who are not are nonetheless essentially judgment proof. Further, Righthaven isnt at all equipped to actually execute judgments. As a result of these two factors, a $3,000 cashiers check is worth far more to Righthaven than a $150,000 default judgment. And if there is one thing most lawyers can attest to,its that a judgment-proof defendant typically realizes they are judgment proof and is simply unimpressed by threats of large monetaryjudgments.Asthesaying goes, youcant get blood out of a turnip, and the turnip is ordinarily well aware of that fact. So Righthaven had to find some leverage that would pry money out of the hands of ordinarily judgment-proof defendants. The website seizure demand was born as a result. The purpose of the website demand was to give Righthaven a tool with which it could tell itstargets:Hey,ifyoudonthaveanymoney,fine,welljustgogetacourttogive us control of your website. Even a defendant otherwise immune from execution of a judgment is going to take notice of that threat. And Righthaven exploited that to leverage defendants into paying up, holdingthewebsiteforransomuntilthesettlementcheckcleared. This is not just abuse of process, it is outright extortion. And it is not just an unauthorized act under the general principle that a complaint cant demand relief without a good faith basis simply to obtain leverage. When it relates to a website, such a demand offends the public policy of the United States as clearly expressed in the Anti-Cybersquatting Protection Act. And looking back on the history of Righthaven, it becomes clear that the website demand was made for another impermissible reason as well. The website demand appears in the earliest

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Righthaven complaints,7 back when Righthaven only operated in Nevada, which was most of 2010. At the outset, Righthaven obviously wonderedand worriedif it could win personal jurisdiction fights against non-Nevada defendants. And while Righthaven eventually did win the personal jurisdiction arguments, it was entirely possible at the time that some defendants might simply ignore the complaint and hope to fight full-faith-and-credit enforcement of the default judgment on due process grounds in the more favorable local venue. But the website demand changed the dynamic. A defendant convinced that Righthavens money judgment would be unenforceable back home wouldntbeabletoarguedueprocessto its domain registrar. A Florida judge could ignore a Nevada judgment and refuse to enforce it, but a defendant could reasonably expect GoDaddy would comply with an otherwise-proper judgment ordering it to do something. From a purely tactical standpoint, the website demand was a great idea and provided great leverageit just had the small problem of being completely illegal. It is hard to see how a use of process could be any more unauthorized or more obviously aimed at an illegitimate collateral objective. One final point deserves consideration on the website issue. Righthavens complaints dontseekacourtorderdirectingthe defendant to transfer control of the domain. Instead, they seek a court order directly binding the domain registrar. Original Complaint, Dkt. #1 at 5 3 (DirectGoDaddy.com,Inc.,andanysuccessordomainnameregistrarfortheDomain,tolock the Domain and transfercontroloftheDomaintoRighthaven). But the domain registrars have never been made parties in any Righthaven suit, a necessity for a judge to order them to do something.

In fact, Defendant is informed and believes the website seizure demand appears in every original Righthaven complaint, many of which are still pending. Page 19 of 34

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It is a fundamental concept of American law that a judicial order does not bind someone the court lacks personal jurisdiction over except in very rare circumstances not present here. And it likewise goes without saying that GoDaddy is an indispensible party with regard to a complaint that seeks an order telling GoDaddy to do something. For the longest time, undersigned counsel just thought that Righthaven must not understand those concepts, and the failure to name GoDaddy as a party was just a mistake. In hindsight the reason is perfectly clear why Righthaven made such an obvious pleading mistake, even apart from the fact that the demanded relief was illegal. Righthaven never actually cared to get an order commanding GoDaddy or whoever to turn over a domain. If Righthaven had actually sought that relief, GoDaddy would be named in the complaints, just as lienholders are named in real property cases. Righthavens CEO Steve Gibson has claimed the federal judiciary recognizes how smart Righthavens lawyers are, how one of them is a Harvard professor, etc.8 Yet simultaneously Righthaven expects the courts to believe its attorneys are too stupid to know that the orders they seek against domain registrars are completely ineffective because the registrars arent parties. Itdoesntmakesense. But that line of thinking presupposes Righthaven actually ever intended to obtain the relief it sought. In truth, Righthaven never had the slightest intention of actually getting a website-seizure order. The last thing Righthaven wanted to do was pick a fight with GoDaddy, a major company with plenty of lawyers at its disposaland plenty of money to pay themwho would not take kindly to Righthavens attempts to illegally adversely possess its customers websites. GoDaddy buys Super Bowl ads by the bushel. Had Righthaven picked a fight with
8

Gibson: I think part of whats happening here is that the federal judges recognize that, you know, Righthaven has hired some of the top lawyers across the country: copyright lawyers, Harvard law professors[.] See Gibson Interview at 7:51, available at www.lasvegassun. com/videos/2011/jun/22/5268/. Page 20 of 34

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GoDaddymuch less all the other registrars named in its complaintsRighthaven would not have survived infancy. So we are left with a plaintiff secretly operating as a proxy for a third party, filing lawsuits over damages to property it does not own, and including demands in its complaints that are illegal and that it has no intention of actually pursuing simply to obtain improper leverage over its targets. Not only is that abuse of process, it is a textbook-worthy example of it. iii. EVIDENCE OF RIGHTHAVENS ACTIONS IN OTHER CASES Righthavensargument that its actions in other cases cannot support an abuse of process claim is absolutely wrong. Obviously Defendant cantrecoverdamages forRighthavenswrongs in other cases, but those wrongs can certainly be used to show motive, intent, and a common plan. The exceptions to Rule 404(b), FED.R.EVID., could not have a clearer application than in a case like this, because motive and intent form an element of the tort of abuse of process. And Righthavens 275 lawsuits are clearly proper similar-transaction evidence. Righthavens complaints are practically identical as are its agreements with its clients. Compare Stephens Media SAA, Dkt. #60-1 with MediaNews Group CAA, Dkt #61-1.Further,Righthavens tactics are the same in all of its cases. Righthavens argument on this point confuses pleading sufficiency with evidentiary admissibility. ThepointofDefendantbringingupRighthavensconductinothercasesistosay Lookwhattheydidtootherpeopletheyredoing ittometoo.Evidenceofthatnaturerunsthe gamut from wholly inadmissible in some types of cases (e.g., evidence the defendant in a wreck case was a habitually bad driver) to proof of an element of a claim in others (like in unfair trade practices claims, as described infra).

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But whether such evidence is ultimately admissible is not the issue. Despite its admissibility on the 404(b) analysis, some similar transaction evidence might fall prey to Rule 403. But so what? The question at the 12(b)(6) stage is whether Defendant has provided the Court with enough facts to take her claim out of the realm of mere hypothesis, to nudge the claim across the line from conceivable to plausible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). Whether the facts asserted are based on ultimately admissible evidence or are even provable at allsimplyisntrelevantatthe12(b)(6)stage. Righthavensconductinothercasesmostcertainly makesEisersabuseofprocessclaim more plausible. Since the true nature of Righthavenscopyright assignments started to be known in April, Righthaven has lost every single ti me a judge has ruled on the legitimacy of an assignment. And they would have lost before that too if the ulterior purpose had been revealed. Its fair to say that Righthavens conduct in other cases doesnt just make Eisers abuse of process claim more plausible. It makes it practically irrebuttable. iv. OTHER CONSIDERATIONS Courts have, for centuries, identified the elements of claims and defenses, giving a granularity to the law to provide certainty and fairness. South Carolina courts have done that with abuse of process, identifying two elements, three components the second element, and two parts of the third component. But at a fundamental level, the termabuseofprocessisnotsomeabstractname.Itisnt Tort #37.Abuseofprocess, at itscore,is justthatusing the judicial system for something other than the remediation of injustice. The sole limitation to the tortand a sensible oneis that a plaintiff can have the worst motives in the world, but as long as he files a legitimate suit andlitigatesitproperly,hisbadmotivesalonearentactionable.

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But a hidden purpose coupled with litigation impropriety mandates a finding of liability on the tort of abuse of process: The gist of the tort is misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose itself, though ulterior, need not be illegitimate; rather, the abuse occurs when the purpose is accomplished by using the process in a manner in which it was not intended to be used. Food Lion, Inc. v. UnitedFood&CommercialWorkersIntl Union, 567 S.E.2d 251, 253 (S.C. Ct. App. 2002) (citations and quotations omitted). Righthavens modus operandi is exactly what is described in the Food Lion case. Righthavensultimatepurposeistoobtainnegotiated settlements for copyright infringement for the true owners of the copyrights. That purpose is ulterior, or at least it was beforeRighthavens client agreements were made public in the past couple months. Righthaven claims what it does is legitimate (even though it isnt), but that is not relevant to abuse of process. What matters here is that the purpose was hidden, the litigation conduct was wrongful, and the wrongful conduct was done to achieve negotiation leverage so that Righthaven could accomplish its hidden purpose. If that is not abuse of process, the tort is a dead letter.

E . Unfair Trade Practices

Plaintiff nextattacksDefendantsclaimundertheSouthCarolina Unfair Trade Practices Act (UTPA), making four arguments: (1) that Defendant has not alleged a loss of money or property; (2) that Defendant has not alleged anunfairordeceptivemethod,act,orpractice(3) that UTPA requires a showing of constitutional actual malice; and (4) that Defendant has not sufficientlyallegedapublicinteresttostateanUTPAclaim. Each of these arguments will be considered in turn.

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i. LOSS OF MONEY OR PROPERTY Though other damages appear elsewhere in the counterclaim and are incorporated into the UTPA claim so far as they are applicable, three specific losses of money or property are specifically pled in the UTPA claim: (1) lost business opportunitiesspecifically, a lost job opportunity; (2) costs incurred in defending this action pro se; and (3) costs and fees incurred in hiring counsel. As to the lost job, Defendant was substantially certain to have obtained a job that would have substantially increased her income. AsaresultofPlaintiffsconduct, Defendant is advised she will be denied the job due to the stringent nature of the background checks involved. Upon request, Defendant will of course submit more detailed evidence to the Court on this issue.9 The lost job opportunity qualifies as an ascertainable loss of money under UTPA. Lost profits of any typeareanascertainablelossofmoneyin unfair trade practices claims, and lost wages are no different than any other type of lost profit. The second element is comprised of the costs she incurred while defending this action pro se. This includes actual costs, such as copying, mailing, etc. It does not include compensation for the time she spent dealing with the matteronly out-of-pocket expenses. Out-of-pocket costs are certainly an ascertainable loss of money. Actual causation is present, in that but for Plaintiffs conduct, Defendant would never have spent the money. And proximate causation is present: it is absolutely foreseeable that someone targeted by a lawsuit will have to spend money on paper, stamps, etc. while defending the suit. Turning to the attorneysfees, thegeneralruleatcommonlawisthatattorneys fees are only recoverable pursuant to a statute or contract. But an exception to that rule is where
9

The job relates to the U.S. government and Defendant submits that there is likely a governmental interest in keeping certain information about it under seal. Page 24 of 34

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attorneys fees are spent defending wrongful litigation. At common law, the wrongful litigationcausesofactionallowthoseattorneysfeestoberecoveredasdamages. The UTPA is an enhancement and extension of common law remedies available for the wrongful conduct within its reach.10 The UTPA claim asserted by Defendant is generally in the nature of a common law wrongful litigation claim,11 like abuse of process or malicious prosecution claim. And with abuse of process and malicious prosecution, attorneys fees spent defending the wrongful litigation are recoverable as damages at common law: [A] claimant in a malicious prosecution or abuse of process action can recover attorney fees incurred in defending against the prior wrongful litigation; however, under the general rule, he or she cannot recover attorney fees incurred in bringing the malicious prosecution or abuse of process action itself. Logically, the same rule should apply if the abuse of process claim is brought as a counterclaim to wrongful litigation rather than as a later separate action. Accordingly, under the general rule, although Buckley could recover attorney fees attributabletohisdefenseagainstTCSIs wrongful litigation, he is not entitled to recover attorney fees attributable to the prosecution of his abuse of process claim. Technical Computer Services, Inc. v. Buckley, 844 P.2d 1249, 1256 (Colo. Ct. App. 1992) (citations omitted). The clear parallel is that where an UTPA claim is based on wrongful litigation,attorneys fees spent in defense of the wrongful litigation are likewise recoverable as damages. Otherwise, UTPA contracts the common law remedy, contrary to its purpose. There appears to be only one

10

[UTPA]shouldnotbeconstruedtoincreaseaplaintiffsburdenofprovingliabilitysinceits purpose is to give additional protection to victims of unfair trade practices, not to make a case harder to prove than it would be under common law principles.deBondt v. Carlton Motorcars, Inc., 536 S.E.2d 399, 407 (S.C. Ct. App. 2000).
11

That being said, even if all of Plaintiffs litigation conduct were excluded, Defendant could stillstateanunfairtradepracticesclaimonotheraspectsofPlaintiffsconduct. Page 25 of 34

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South Carolina appellate case discussing this, Roddey v. NationsWaste, Inc., 05-UP-472 (S.C. Ct. App. filed July 28, 2005).12 The Roddey opinion features an UTPA plaintiff seeking relief against a party that had brought an unfounded lawsuit against him. Id. at Law and Discussion, 1. But, in sharp contrast to this case, that wrongful lawsuit was quickly dismissed before Roddey obtained an attorney and he therefore incurred no legal fees. Id. The court makes clear that if Roddey had incurred legal expenses in defending the unfounded lawsuit, they would have satisfied UTPAs ascertainablelossrequirement. Id. Based on Roddey and Technical Computer Services, supra, it is quite clear that legal expenses are an ascertainable loss of money where an UTPA claim is based on wrongful litigation.AquestionarisesastohowthisfitsinwithUTPAsstatutoryawardofattorneysfees. In Mull v. Ridgeland Realty, LLC, 693 S.E.2d 27 (S.C. Ct. App. 2010), the court encountered an similar question in a different context, and held that recoverable damages under UTPA are subjecttotrebling,whereasattorneysfeesawardedbystatutethatarisefromtheprosecutionof the UTPA claim are not subject to trebling. Under Mull, Roddey, and Technical Computer Services, the correct approach is this: Determinethetotalamountofreasonableattorneysfeesincurred.Dividethattotalbetweenfees attributable to defense and fees attributable to prosecution of counterclaims. The fees attributable to defense constitute an ascertainable loss of money, are recoverable as da mages, and are subject

12

Undersigned counsel is unaware of any prohibition on the citation of unpublished authority in this Court, and it would seem to be authorized by Local Civil Rule 7.05(A)(4) (form and content of memoranda). That being said, counsel only cites unpublished cases when no published case establishes the proposition. If the Court should determine unpublished authority is impermissible, counsel will immediately prepare a edited version of this brief and remove the citation. Page 26 of 34

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to trebling. The fees attributable to prosecution of counterclaims do not constitute an ascertainable loss of money, are recoverable under statute, and are not subject to trebling. The central point is this: BecauseDefendant hasincurredattorneysfees attributableto the defense of Plaintiffs wrongful litigation, that figure constitutes an ascertainable loss of money per UTPA. ii. UNFAIR OR DECEPTIVE METHOD, ACT, OR PRACTICE Righthaven denies Defendant has alleged any unfair or deceptive practices. First, consider what Righthaven is. It is not a law firm but a business engaged in collections. But a key difference between Righthaven and a regular collections agency is that Righthaven doesnt collect legitimate, sum-certain, contractually-agreed upon debts. Righthaven leverages settlements out of its targets with deceit, in many cases where the target would have practically no exposure even if the true copyright owner brought the claim. Righthavens business tactics are identical to those employed by hard-nosed debt collectors who will say or do just about anything to get a target to pay up. A business operating in that fashion is clearly within the reach of the Unfair Trade Practices Act. What follows are just a few of Righthavens unfair and deceptive practices; many others are described at length throughout the Second Amended Answer. Righthaven lies about being the true owner of the copyright, and does so to induce its targets intopayingmoney in settlementofclaims. To pull off the trick, Righthaven has two versions of copyright assignments, one fake and one real. The fake version purports to give Righthaven all right, title, and interest in the relevant copyright. This version is made for public consumptionand for production in litigationso as to fool judges, targets, and the general public. See Stephens Media fake assignment, Dkt. #60-1 at 17; MediaNews Group fake

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assignment, Dkt #61-1 at 14. Even worse, these fake assignments are notarized, despite there being no requirement in the Copyright Act or any other law for notarization. The purpose of the notarization is to falsely imply validity, and as the assignments are produced with knowledge they will later be submitted to a court, the signatories commit perjury. While the fake assignments purport to give all right, title, and interest in the copyright all the while bearing a fancy notary sealthe real assignments are master agreements intended to be kept secret. Both of the original master agreements presently available, the Stephens Media SAA and the MediaNews Group CAA, operate to entirely take back the rights purportedly assigned by the fake assignments. See Stephens Media SAA, Dkt. #60-1 at 5, 7.2; MediaNews Group CAA, Dkt. #61-1 at 9-10, 6. Notably, though unsurprisingly, the real assignments do not bear jurats for notarization, demonstrating that the notarization of the fake assignments is truly just for show. Not only is this a deception, it is a very ingenious one.13 Armed with fake ownership documents, Righthaven files a fraudulent copyright application. Righthavens clients could register the copyright themselves then execute the assignment, but Righthaven prefers the reverse so that the Copyright Office documents, includingtheregistration,bearRighthavensname.Aswiththenotarization,thisisto give even more of a veneer of legitimacy to its lies about copyright ownership by creating realistic looking documents that hide the true nature of the transaction. This is exactly what Judge Hunt referred to in Democratic Underground when he criticized Righthaven for misleading the Nevada judges

13

And had Stephens Media not disclosed the SAA in discovery in Righthaven v. Democratic Underground, the documents might never have come to light. Righthaven clearly intended to neverturnthemover,andbecausecivillitigants cant executesearchwarrants,theagreements would never have been known to the judiciary or the general public. That plan was foiled becauseStephensMediasattorneysintheDemocratic Underground action were apparently not willing to engage in discovery abuse, though clearly Righthaven was willing to and did in a variety of cases. Page 28 of 34

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about the true nature of the Righthaven transactions so as to obtain favorable rulings. The rulings JudgeHuntwasreferringtowererulingsobtainedbyRighthavensproductiontothecourtsof the fake assignments and fraudulently obtained copyright registrations. Righthaven and its clients work on other fronts to build a public perception that Righthaven was the legitimate copyright owner. Multiple stories in favorable media outlets, someevenownedbyRighthavensclients, were put out to create a general public perception that Righthaven was the true copyright owner. AndyetRighthavenwasnt. Righthaven files lawsuits without warning or any type of pre-suit negotiation. The lawsuits are often poorly researched and contain a variety of errors. The no-warning nature of the suit is carefully calculated by Righthaven to maximize duress on its targets so as to more effectively leverage settlement dollars out of them. Righthavens complaints include a legally unsupportabledemandforthetargetswebsite,andtheanalysisonthatissueprovidedaboveis equally relevant in the unfair trade practice context. Specifically as to The Denver Post, the website hosting the material that Righthaven sues over, www.denverpost.com, actively encourages users to share its content, providing lots of software tools to enable sharing, over 300 different kinds. The only restriction suggested on the website is that the shared material may not be used for commercial purposes. This statement appears at the bottom of every page: Thismaterialmaynotbepublished,broadcast,rewritten, or redistributed for any commercial purpose. Now consider a zoo that has tigers and elephants. There is a sign in front of the tiger exhibit,DontFeedthe Tigers.Thereisnosuchsigninfrontoftheelephantpen.A reasonable person would absolutely conclude that feeding the elephants is acceptable. The Denver Post has a sign that says Dont Share Content Commercially. But there is no such sign about

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noncommercial sharing. A reasonable person would come to exactly the same conclusion about noncommercial sharing as he or she would about feeding the elephants at the zoo. In addition, consider that Sara Glines, a vice president of MediaNews Group, told the

New York Times that MediaNews Group reviews and controls Righthavensactivitiesanddoes
not allow it to sue over noncommercial uses. And yet Righthaven sued Defendant Eiser over a noncommercial use. A company cannot lead its customers to believe that they are allowed to do something, tell the New York Times that they will not be sued if they do it, and maintain suit over that very thing that they claim to allow. Much like the above analysis regarding abuse of process, if that is not an unfair trade practice, it is hard to see what could be. And as Righthaven is a willing joint venturer with MediaNews Group in this lawsuit and all others relating to The Denver Posts material, Righthaven is jointly and severally liable right along with MediaNews Group for its participation in this scheme. iii. CONSTITUTIONAL ACTUAL MALICE Righthaven next suggests that Defendant attempts to sue for defamation via an unfair trade practices claim. To the extent that was true with regard to the First Amended Answer, it is no longer true with regard to the Second Amended Answer. Plaintiffs claims regarding constitutional actual malice are therefore moot. iv. PUBLIC INTEREST Righthaven next claims that there is no public interest at issue in its international litigation campaign. This argument isntjustfrivolous,its downright fraudulent. Righthaven has sued approximately 500 defendants from all overand outsidethe country. Righthaven started off in Nevada and has filed 217 lawsuits there. Righthaven then expanded into South Carolina

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and Colorado, filing the instant action here and 57 suits in Colorado. If suing 500 defendants from all across the world doesntaffectthepublicinterest,itishardto see what could. Righthavens motion mocks Defendants allegation in the First Amended Answer that Righthaven has brought more than 239 claims for copyright infringement throughout the country, and will undoubtedly be filing many more. Motion to Dismiss, Dkt. #23 at 14 (citing First Amended Answer, Dkt. #22 at 5, 25). But Defendant was absolutely right. Righthaven did continue filing lawsuits36 moreand only stopped when the Nevada and Colorado District Courts made clear that Righthaven had some explaining to do. Righthavens argumenttothecontraryis that Defendant cannot show an impact on the public interest because Righthaven has filed only one lawsuit in South Carolina . Plaintiff cites Jeffries v. Phillips, 451 S.E.2d 23 (S.C. Ct. App. 1994) in support. But what Plaintiff fails to tell the Court is that the Jeffries casealong with a variety of other South Carolina authority establishes that the public interest is affected where a potential for repetition is shown. Id. at 23. In fact, as the Jeffries court explains, the way to show a potential for repetition is to submit evidence of similar transactionsthe very thing Righthaven criticizes Defendant for with respect to the abuse of process claim. Defendant Eiser can do far better than a showing of potential for repetition. She can show actual repetition: 274 examples of it. That these examples did not occur within the territorial boundaries of South Carolina is totally irrelevant. Righthaven is an international operation, suing people wherever they may be. Righthaven has sued defendants all throughout the United States and even Canadians and British subjects. Righthaven does not at all discriminate based on stateof-residence or even country-of-residence. Righthaven targets people everywhere, from Canada and England to Georgia and North Carolina. See Righthaven v. Toronto Star Newspapers, Ltd.,

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1:11-cv-0051-JLK (D. Colo); Righthaven v. Newman, 2:10-cv-01762-JCM-PAL (D.Nev.) (English defendant) Righthaven v. Sumner, 1:11-cv-00222-JLK (D. Colo.) (Georgia defendant); Righthaven v. Hill, 1:11-cv-00211-JLK (D. Colo) (North Carolina defendant). It is true that Righthaven and its clients have not filed any further suits in South Carolina. But not because they dont want totheyre afraid to. As best Defendant can tell, her First Amended Answer contained the very first counterclaim for money damages lodged against Righthaven in any lawsuit in the country. Prior Righthaven cases involved counterclaims seeking declaratory judgments of noninfringement, but this case appears to be the first in the entire country where a defendant fought back with counterclaims for money damages. RighthavenssubsequentavoidanceofSouthCarolinahasnothingwhatsoevertodowith a lack of intent to continue suing South Carolinians. Itsbecause Righthaven and its allies see serious exposure on Defendant Eisers counterclaimsas they should. Since Eisers counterclaims were filed, other Righthaven targets have filed similar claims. And what is now known about Righthaven has validated everything Eiser alleged in her First Amended Answer. Had Defendant Eiser paid up and shut up as Righthaven expected her to, the District of South Carolina would now be inundated with Righthaven cases just as Nevada and Colorado are. And if Righthaven somehow prevails in this action, that is precisely what will happen next. Not only is there a potential for repetitionif Righthaven wins this case, there is a certainty of it. For Righthaven to claim otherwise is shockingly dishonest, even for Righthaven.

F . Civil Conspiracy
Plaintiff complains that the original civil conspiracy claim pled in the First Amended Answer was factually insufficient, though tellingly concedes: Eiser does not have a sufficient basis for bringing this claim at this point. Motion to Dismiss, Dkt. #23-1 at 17 (emphasis

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added). Fortunately, in the time between the First Amended Answer and the Second Amended Answer, Defendant was able to put together a rock-solid factual basis for her claims and, at the requestofPlaintiff,namemostifnotallofPlaintiffsco-conspirators too. Id. (criticizingEisers failure to identify any alleged co-conspirators of Righthaven). I I I. C O N C L USI O N Unsurprisingly, the law provides quite a few remedies and theories of recovery for victims of egregious, intentional, coordinated misconduct. Those that Defendant could assert in good faith are put forward in her Second Amended Answer. They run the gamut from claims that are clearly available on these facts to claims that are admittedly novel in this context, but such is the nature of compulsory counterclaims. And based on material already in the record from other courts and Righthavens own documents, Defendant is likely already entitled to summary judgment as to liability on several of her counterclaims. The abuse of process and unfair trade practices claims Righthaven attacks in its motion are not just supported by allegations in the counterclaimthey are amply supported by facts in evidence already before the Court. And if Plaintiff somehow managed to get all ofDefendants other causes of action dismissed, Defendants civil conspiracy claim would then be before the Court and would be ripe for summary judgment on the same facts.14

14

As required when a civil conspiracy claim relies on the same basic facts as other causes of actioninacomplaint,Defendantscivilconspiracyclaimispledstrictlyasanalternatemeansof recoveryincaseDefendantsothertheories as to a particular element of damages fail for some reason.Wheretheparticularactschargedasaconspiracyarethesameasthosereliedonasthe tortious act or actionable wrong, plaintiff cannot recover damages for such act or wrong, and recover likewise on the conspiracy to do the act or wrong. Todd v. S. Carolina Farm Bureau Mut. Ins. Co., 278 S.E.2d 607, 611 (S.C. 1981) (citing 15A C.J.S. Conspiracy 33 at 718). Therefore, it is not necessary for all other causes of action to be dismissed before civil conspiracy is ripe. If all other theories as to a specific element of damages fail, civil conspiracy allows recovery of that element of damages if conspiracy is proved. Id.; cf. Austin v. StokesCraven Holding Corp., 691 S.E.2d 135, 153 (S.C. 2010) (discussing election of remedies). Page 33 of 34

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Fortheforegoingreasons,Plaintiffsmotiontodismissmustbedenied. Respectfully submitted, s/J. Todd Kincannon J. TODD KINCANNON, ID #10057 THE KINCANNON FIRM 1329 Richland Street Columbia, South Carolina 29201 Office: 877.992.6878 Fax: 888.704.2010 Email: Todd@TheKincannonFirm.com s/Thad T. Viers THAD T. VIERS, ID #10509 COASTAL LAW LLC 1104 Oak Street Myrtle Beach, South Carolina 29578 Office: 843.488.5000 Fax: 843.488.3701 Email: tviers@coastal-law.com July 11, 2011 Attorneys for Defendant s/Bill Connor BILL CONNOR, ID #9783 HORGER AND CONNOR LLC 160 Centre Street Orangeburg, South Carolina 29115 Office: 803.531.1700 Fax: 803.531.0160 Email: bconnor@horgerlaw.com

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