Righthaven CEO: Judges Are Really Just Giving Guidance To Righthaven Competitors
from the swimming-in-the-river-in-egypt dept
Paul Quinn points us to this absolutely wonderful, must-watch interview of Righthaven CEO Steve Gibson, by Jon Ralston, who doesn't hold back at all. The opening question is, "You really screwed this whole thing up, didn't you?" From there, Gibson starts squirming, pretending that this is all about minor "technical" issues -- and saying that Ralston is "taking statements out of context," when he asks about the accusations from judges of "dishonest" behavior. Ralston doesn't let up, though, accusing Gibson of running a "shakedown" scam and calling the whole thing "stupid."It gets better. Gibson tries a new tactic to explain why the judges have so thoroughly trashed Righthaven's cases. You see, all those angry words about Righthaven's dishonest activities and questionable behavior? Apparently that's not really meant for Righthaven at all. Oh, no no no. The judges respect and appreciate Righthaven, but they're so impressed by Righthaven's brilliant legal minds, that they're afraid others will copy Righthaven's plan... and use lawyers who aren't quite as smart. I'm not kidding:
GIBSON: I think part of what's happening here is that the federal judges realize that Righthaven has hired some of the top lawyers across the country. Copyright lawyers. Harvard law professors. And they understand that we're affiliated with an organization as reputable as Stephens Media.... In any event, I think what the judges are saying is 'listen, folks, Righthaven is filing a lot of lawsuits.' They understand that we're potentially genuine with respect to upholding copyrights. They don't want to see Righthaven competitors potentially come on with not solid documentation, and they're giving us guidance as to what the documentation should be.I'm fascinated that anyone could possibly make such a statement and not have their brain explode from the sheer dishonesty of it. No, Steve, the judges aren't giving guidance to Righthaven competitors. They're threatening to sanction you (big time) for filing a bunch of sham lawsuits, for which the Nevada bar is investigating your lawyers as well.
Also, perhaps I heard wrong, but right before the first commercial break, it sounded like Gibson claimed (1) that only Righthaven has standing to sue and (2) that they only granted Stephens Media a non-exclusive license. I don't believe either claim is accurate. Even if you grant the idea that Righthaven had the copyrights from Stephens and then granted a license back to Stephens, then Stephens would likely have standing to sue (Righthaven, on the other hand, does not). Also, it seems abundantly clear that Righthaven has no right to further license the works in question to anyone other than Stephens Media, so I don't see how that's a non-exclusive license at all.
But, honestly, that's all sideshow. Righthaven has lost badly, and it looks like Gibson hasn't quite come to terms with how much trouble his company may be in.
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Filed Under: copyright, jon ralston, steve gibson
Companies: righthaven
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Re:
Possible disingenuousness...
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"Possible disingenuity"
"Possible disindisastrous"
"Cap'n! The dilithium crystals are burning up! The possible disengines can't take no more of this!"
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potentially?
So... they're only genuine... maybe? Is that a misquote, or did he really just say that they are only maybe, possibly genunine in upholing copyrights?
Did I just hear the click-clack of someone chambering a Freudian-round?
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Re: potentially?
This guy is a megalomaniacal loon....
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Meglomania?
Trying to to call omitting Stephens Media's 50% interest from all 200+ lawsuits a "technicality" is beyond mere legal wrangling. It is, I'd say, material to the suits. I don't think this interview will help him get out of the possibility of legal sanctions.
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Re: Re: potentially?
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While it seems you mean your post in jest, violence really isn't funny and I don't want to see your post used, out of context, against those who believe in copyright reform.
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Re: potentially?
BUt DANG! When your CEO says your entire business model is potentially genuine, um, sell?
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It's nice to know that the "brains" behind this "company" is just as "brilliant" as the "lawyers" he hired to "sue" people.
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Ouch...
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He blames the "lawyers" :-o
I also love how Gibson tries to make an analogy with title on a house, except that copyright is governed by copyright statute and case law and can't legitimately be analogized to the title to a house--which he, as a lawyer in 200+ copyright lawsuits must know, but does anyway.
IMO. IANAL.
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Re: He blames the "lawyers" :-o
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Steve Gibson
Strength - 9
Dexterity -10
Constitution - 8
Intelligence - 9 (-1 for breaks in logic)
Wisdom - 10 (-2 for troll)
Charisma - 8 (in his own mind - 18)
Fortitude: +1 to all Fort saves
Reflex: 0
Will: 0
+2 to Forgery
+2 to Disguise
+2 to Bluff
0 to Spot Checks
-1 to Intimidate
-2 to Gather Info
-2 to Diplomacy
-2 to Concentration
Character Abilities
Leadership
Deceitful
Made here
I think it's time for Gibson to re-roll his character.
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Re: Steve Gibson
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It's called Cognative Dissonance... I think it's required to be a lawyer or Media company Exec
There is no other way to explain how they can 'believe' the things they say (other than being total outright hypocritical liars, which is another option, but lets be nice and give them the benefit of the doubt).
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Who are you to lecture a sex worker on morality?
If you want to tear down Kayden Kross's arguments on copyright please do so. I think her arguments are weak. But I'm talking about her **arguments** and not making an ad hominem like you are. And really, it isn't fair to the sex worker to compare her to Righthaven. One of them screws hundreds of people for exorbitant sums money the other makes porn films.
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Re: Who are you to lecture a sex worker on morality?
If I was Gibson, I would argue that I mentioned adult actress purely for contrast, and hence what I said was actually a compliment to her virtues.
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Re: Re: Who are you to lecture a sex worker on morality?
If you meant to complement Kayden Kross then I'd say your communications skills are lacking.
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"...us content owners left standing with our thumbs up our butts..."
Honey, that wasn't a thumb...
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Definitely worth a read if you're interested in the standing debate.
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As far as Gibson goes, he's definitely trying to spin all this as a positive. That's not too surprising. Of course he's trying to spin it. What else would he do? I understand him though when he says they're just trying to stand up for their rights and trying to fight the ocean of infringers. I don't begrudge them that.
The fact remains that I think the judges got the standing issue wrong, not to mention the bad fair use rulings. As Gibson said, on to the Ninth Circuit. I'm assuming in the meantime that the "copyright experts" and "professors" that he spoke of can brief out those issues really well for the circuit court. I really don't see the Ninth Circuit agreeing that posting an entire article on a message board is fair use. Nor do I think they'll agree that Silvers says what these judges seem to think it says as to standing.
We'll see. There's no lack of entertainment from watching this unfold, that's for sure.
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He did explain it.
Gibson did "explain" it. The lack of disclosure was a "technicality". In the same way lying or perjury might be called a technicality, I'd say.
I liked how the host called Stephens Media Righthaven's "client"--which seems to be the right description--and Gibson had to try to clarify by calling Stephens media a "business relation".
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Re: He did explain it.
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I don't care what they claim to by "trying" to do, what they *are* doing is extorting money from people. Real lawsuits have evidence and a case, they aren't just a bunch of letter sent out that say give me money or I'll make your life hell whether youve done anything or not.
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It's not a stupid question at all. Judge Hunt dismissed Righthaven from the suit, but there's still the counter-suit against Stephens Media. In the counter-suit, Democratic Underground is asking the judge to rule that their use wasn't infringing. Since Righthaven now has the new agreement with Stephens making Stephens only a non-exclusive licensee and Righthaven the owner of the copyright, Righthaven is saying that they have a right to be a party to the counter-suit they were just dismissed from. It's kind of sneaky because they are forcing Judge Hunt to rule on whether or not Righthaven has standing under the new agreement between Righthaven and Stephens. Judge Hunt declined to make that ruling when he dismissed Righthaven from the main suit. Now he's going to have to rule one way or the other. The fact that Righthaven has brought in this "bad ass litigatrix" to represent them in the matter means that they are going to push this standing issue hard.
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With all these complexities I'm sure there must be a legal way to add Righthaven to the suit and dismiss Democratic Underground, so Righthaven and Stephens Media would sue each other: whoever loses, pays legal fees to Democratic Underground.
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He ruled it doesn't make any difference:
So, I doubt very much that Righthaven will be allowed "in the back door," as it were.
Especially since even the "Clarification" of the SAA likely does not give Righthaven standing to sue (despite using the language of a "non-exclusive license"). Judge Pro, the judge in Righthaven v. Hoehn, said this about the "clarified" assignment:
I'd also like to point out one thing about Gibson's interview. He said the "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful" language that the Court used, was in reference to the profit-sharing between Righthaven and Stephens. He lied. That language was a direct reference to the standing issue.
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Standiing to intervene may be different.
It seems pretty clear that Righthaven has lost standing to sue on all of the extant cases. But that isn't what this latest filing is about. They are now asking for standing to defend their rights from a counter suit seeking a declaration of non infringement. That may be a different legal matter than standing to sue given that Righthaven may now actually have legal ownership of copyright as of now and going forward.
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Re: Standiing to intervene may be different.
That's exactly right. It's not about whether they had standing when they brought suit against Democratic Underground (Judge Hunt already ruled they didn't), this is about whether they have standing now under the new agreement. Their argument is that the counter-suit involves a copyright they now own, so they have a right to be a party to the suit.
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Notwithstanding the actual transaction that occurred, Righthaven argues that the amendment it executed with Stephens Media on May 9, 2011, the day that they filed their response to the supplemental memorandum validates or fixes any possible errors in the original SAA that would prevent Righthaven from having standing in this matter. However, this amendment cannot create standing because "'[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.'" [Emphasis in original]
So, I doubt very much that Righthaven will be allowed "in the back door," as it were.
Judge Hunt ruled that the new agreement doesn't work retroactively, so it couldn't help them in the main suit. The issue here is whether Righthaven has standing now, in the present. Judge Hunt said that he didn't think they would in the opinion, but he didn't actually rule on the point. Righthaven is saying that even if they didn't have standing then, they have standing now since the new agreement is in effect now. If they are now the copyright owner, they then have a right to be a party to the counter-suit since it affects their copyright. It's quite clever because they're forcing Judge Hunt to make a ruling as to their standing under the new agreement.
I'd also like to point out one thing about Gibson's interview. He said the "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful" language that the Court used, was in reference to the profit-sharing between Righthaven and Stephens. He lied. That language was a direct reference to the standing issue.
Was it? I thought he said that about the failure to name Stephens in the corporate disclosure statement. That's what he's making Righthaven show cause about, not the standing issue per se.
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He's talking about the amended agreement between Righthaven and Stephens. In the new agreement, Stephens assigns the copyright to Righthaven, and Righthaven grants back to Stephens a non-exclusive license. Non-exclusive licensees do not have standing to sue for infringement, so that means that only Righthaven would have standing, as the licensor.
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Yes. Of course Gibson is attempting a bit of misdirection by saying that because that standing, if it stands, only applies to *new* suits. Standing in the old cases is based on when the case was filed. Amendments can't fix the standing in those cases.
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I still think the original agreement gave Righthaven standing, and I expect that they'll be making much better arguments on that issue in the other cases where it's come up. They've got "experts" and "professors" on their side now! I'm sure they're busy right now working on how to explain to other judges why Judges Hunt and Pro got it wrong. ;)
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Standing.
I'd say that Gibson is an outright liar.
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Re: Standing.
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Standing.
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Re: Standing.
They teach us not to lie to the courts in law school since attorneys are "officers of the court." ;)
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I should point out that this is not how Judge Pro viewed the new contract:
- Righthaven v. Hoehn
Of course, Judge Hunt may rule differently, but I wouldn't count on it.
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Illusory rights
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Re: Illusory rights
Well, more than that, in fact. In order for Righthaven to exploit the works in any way, they need Stephens' prior approval, even if Stephens does not "reclaim" the copyright.
It doesn't even "add another layer of paint to the facade;" it adds a splotch of graffiti to a gaping hole in the foundation.
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Judge pro on the revised sham transfer of rights
" The May 9, 2011 Clarification offers recitals stating the parties’ intent “to convey all ownership rights in and to any identified Work to Righthaven . . . so that Righthaven would be the rightful owner of any identified Work and
entitled to seek copyright registration.” However, it does not provide Righthaven with anyexclusive rights necessary to bring suit. The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work, requiring 30 days advance notice to Stephens Media before being able to exploit the Work for any purpose other than bringing an infringement action. Stephens Media has, in its sole discretion, the option to repurchase the Copyright Assignment for a nominal amount within 14 days, thereby retaining the ability to prevent 16
Righthaven from ever exploiting or reproducing the Work. Stephens Media’s power to prevent Righthaven from exploiting the Work for any purpose other than pursuing infringement actions is further bolstered by the Clarification’s provision that every exploitation of the Work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media. Stephens Media may obtain injunctive relief against Righthaven to prevent such “irreparable harm” and, pursuant to the Clarification, Righthaven has no right to oppose Stephens Media’s request for injunctive relief. Accordingly, Righthaven does not have any exclusive rights in the Work and thus does not have standing to bring an infringement action. "
http://docs.justia.com/cases/federal/district-courts/nevada/nvdce/2:2011cv00050/78697/28/
Th is is all just so stupid and unnecessary. If Righthaven was set up the normal way and admitted it is a law firm working on contingency the issue of standing would never come up. It's just silly how Stephens Media wants to pretend that the hundreds of vexatious lawsuits filed with zero attempts at mitigation (no DMCA takedown notices, no C and D letters) have nothing to do with it. Instead Righthaven and Stephens Media have set up what seems like a sham that is engaged in illegal and dishonest barratry and champerty.
IMO--as are all of my posts.
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Re: Judge pro on the revised sham transfer of rights
Except perhaps this:
If Righthaven was set up the normal way and admitted it is a law firm working on contingency the issue of standing would never come up.
Part of the point of this arrangement is that it supposedly shelters Stephens from any legal backlash (like the counter-suit in this case), meaning they don't risk e.g. legal fees.
Also, I'm not entirely sure the barratry charge would go away. It is Righthaven that seeks out "infringers," after all. I'm guessing that avoiding those charges (by claiming they're not a law firm, but a "holding company") is also part of the reason Righthaven is set up this way.
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You don't think Judge Hunt will rule in Righthaven's favor? What makes you think that? ;)
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No copyright trolls?
They are oddly absent from this thread.
They must be too busy spewing their crap in the 8 bit miles davis thread I guess.
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Re: No copyright trolls?
Righthaven plays hardball. The problem for them is that so does the other side.
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Exploitive
More like Righthaven throws chairs at the fans.
The the Stephens Media newspaper tells people to "ShareThis" with Friends via email, Facebook, Twitter, Google Buzz, Blogger, MySpace, Digg, AIM Share, StumbleUpon, or Print or Save the article--all with no notice of copyright limitations. Then if someone does "ShareThis" on their blogg or in a web comment, Stephens Media files suit via Righthaven with no notice, no attempt to mitigate, no C and D--and the demand the statutory maximum and forfeiture of the entire domain even for what could be de minimus use! That that ain't "hard ball" that's just vicious, exploitative and dishonest IMO.
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Why does he look and sound like....
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Re: Why does he look and sound like....
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*yawn*
If I knew nothing about this case, I'd see an interviewer who can't keep his mouth shut, constantly interrupting his guest without ever really cornering him, screwing up the metaphors and missing point after point, while the guest blew clouds of weasel-language which the host made no real effort to dispel. What was the "dishonest" behavior about? Are Gibson's counterarguments valid? Did Righthaven go after people who were small, or people who were innocent? How much trouble is Righthaven really in, and does it have a snowball's chance of making further profit by these suits? All I would know at the end of the interview was that Gibson was unwise to go on the show (and that the show isn't worth watching).
Crucifying a visitor on camera is an art, it requires real debate skill and a quick mind, not just a loud voice and a friend in the control booth.
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Re: *yawn*
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Even more interesting, Judge Hunt signed an order today allowing the "bad ass litigatrix" Dale Cendali to appear in the case as attorney for Righthaven and Stephens Media.
Guess they called in the heavy-hitters for support.
Her info is here: http://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=9692
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Kirkland? REALLY???
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The times they are a-changing...
I'd argue that if millions of people are behaving in a manner that goes against current civil law, it is time to change that law as it is no longer a reflection of the current social norms and ethic.
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Yeah, that has always been a curious claim, being "officers of the court." But you don't get a cool badge or anything, and you still have to go through the metal detectors... :-o
As to lying, I guess that means you aren't supposed to make misstatements of fact. But you are, it seems, allowed to make misleading by deliberate omission, as, for example, Gibson does several times in the interview. Kind of like the Fairy race in some tales, where the Fey are know for being unable to ought right lie but are experts in the practice of deceit.
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A badge would be awesome. "Stop, in the name of the law! I'm a lawyer!" All we get is a membership card to the bar.
I do have an ABA membership card. I don't think that gets me very much though other than lots of junk mail.
As to lying, I guess that means you aren't supposed to make misstatements of fact. But you are, it seems, allowed to make misleading by deliberate omission, as, for example, Gibson does several times in the interview. Kind of like the Fairy race in some tales, where the Fey are know for being unable to ought right lie but are experts in the practice of deceit.
That's called "being a good advocate." ;)
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just to be clear
Choose wisely.
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More...
Now, this is clearly overkill, but in the defendant's words:
I heard about it from Righthaven Victims, which has the defenses as a bullet list. If you really want to, though, you can read the whole thing on Scribd.
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Re: More...
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The whole thing...
One of the most important aspects of the answer and counterclaim is that the defendant requests that the court order the corporate veil--the double layer of LLCs--pierced so that the owners of Righthaven will be personally responsible for the liabilities of the company should Righthaven loose court cases and have to pay damages and attorney's fees, something that seems likely in the near future. The defendant alleges that one of the prime purposes of Righthaven's structure was to insulate Righthaven clients from such liability through an under funded company, one the key players could just walk away from should it be sued into bankrupts. Piercing the corporate veil is just what is needed to inspire Gibson into some ethics and personal responsibility--he should be scared of what could happen if he is held personally liable.
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Re: The whole thing...
Well, not to burst your bubble, but that's because it appears to be written by people whose understanding of the law is no greater than lay folks like ourselves.
I mean, half of it is pure fantasy. Some of it is outright wrong: for example, a "work for hire" is not the same as a work done by an employee, and freelancers often use "work for hire" contracts.
Still, that's the nature of defense filings: throw law against the wall, and see what sticks.
Interestingly enough, the RICO charge is actually not completely far-fetched. If Righthaven sent out "settlement" letters, when it knowingly did not have the copyright, then it could be considered fraud, and RICO charges might apply.
I doubt it'll actually hold up in court, but that would certainly make things interesting. Especially to other cases - I doubt the Hurt Locker guys would go ahead with threatening lawsuits (25,000!) if they thought there was even a tiny chance they'd face RICO charges.
And the veil-piercing demand seems spot on to me. I have no idea if the court will allow it, though.
At this point, I'm reading it more like a Jackie Collins novel than an actual legal filing: entertaining and sordid, but not entirely believable.
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Work for hire isn't what people think it is.
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Re: Work for hire isn't what people think it is.
Right, but a huge amount of independent contracts do in fact have a written clause that says it is a work for hire. It's standard boilerplate language in graphic design contracts, for example. The notion that someone is an independent contractor does not automatically mean that the work was not a work for hire.
It sounds like Rosen was contracted to write weekly (or whatever) op-ed pieces. If that's true, the contract probably was a work-for-hire contract, even though he was still considered an independent contractor. I expect Stephens Media probably would not make such a basic mistake, but who knows. Even if they did, that does not make the assignment "fraudulent." (The fact that Righthaven claims ownership does, though.)
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Re: Re: Work for hire isn't what people think it is.
Work for hire is defined in Section 101 of the Copyright Act:(emphasis mine).
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Re: Re: Re: Work for hire isn't what people think it is.
Oh, I'm absolutely not denying any of that. I'm just pointing out that in the real world, where artists work for a living, work for hire contracts are standard. Boilerplate language does often include "a written instrument signed by them that the work shall be considered a work made for hire." If Rosen's situation is as I think it is, it is very likely that the contract included a "work for hire" provision.
Even if not, then the contract likely contained an assignment to the LVJR as a condition of publishing. This would make the copyright registration incorrect, but not "fraudulent," since either way the LVJR had ownership of the content.
I'm absolutely not stating that this can be assumed. It is absolutely right that the defendants be able to ask for a copy of the contract. I'm just stating that this, by itself, without any showing of the actual contract, is not proof of fraud.
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Re: Re: The whole thing...
Actually, it is. There are more types of Work Made for Hire, but one is exactly that: work done by an employee within the scope of his or her employment.
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Re: The whole thing...
- The defendant did not post the article, and has no editorial control over the website whatsoever. They sued the wrong person.
- The infringing article was read by "no more than approximately 20 people."
- The Denver Post encourages users to share their news stories; according to Eiser, their website provides a method to post the entire article elsewhere. (I couldn't find it, but then again I didn't look very hard.)
- Righthaven went into default status with the Nevada Secretary of State on February 1, 2011. (That is, it did not renew its business license.) No idea if that's still the case.
- The original author, Mike Rosen, is himself embroiled in a plagiarism controversy.
- Steve Ganim, one of the lawyers employed by Righthaven and living in Nevada, is not a member of the Nevada bar (though he is a member of the Florida bar). When another defendant made this info public, Righthaven threatened him with a libel lawsuit.
- After the EFF challenged the awarding of "full freight" attorney's fees, when Righthaven employs an in-house legal team, Righthaven started using outside legal council exclusively. No in-house lawyers are listed as council in this lawsuit. The accusation is that they did this to artificially inflate attorneys' fee awards.
- But apparently, outside council doesn't actually see that money: Edward Fenno, Righthaven's prior counsel in this action, potentially cited a failure of Righthaven to pay for his services as a basis for dissociating. In his motion to withdraw as Righthaven's counsel in this matter, Fenno referenced Rule 1.16(b)(5) of the South Carolina Rules of Professional Conduct: "Withdrawal is permissible [where] 'the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's service or payment...'"
Someday, they're going to make a movie out of this.
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Paragraph 3 of the SAA
I would think that this language strips away any of the protection SM sought to have by supposedly having Righthaven be the party bringing action. It is clear that SM has chosen not to exercise this right in several cases and therefore should share in any liability associated with them.
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obvious transgressions!
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Proof needs to be in the suit.
I'm absolutely not stating that this can be assumed. It is absolutely right that the defendants be able to ask for a copy of the contract. I'm just stating that this, by itself, without any showing of the actual contract, is not proof of fraud."
I'd say that because the writer is not an employee it cannot be assumed that the paper has copyright. Therefore, the suit should have included a copy of the contract where the reporter assigned copyright to the paper as part of the proof that the paper owned the copyright. Thus, absent such evidence the paper (and subsequently Righthaven) has failed to prove ownership of the copyright and thus lacks proof standing to sue--that over and above all their other lack of standing.
If they had proof of ownership why didn't they include it in their suit? Are they just lazy and presumptuous? Or do they really not have it. I think their is sufficient reason to suspect they don't own it and to justify discovery on that point.
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