Righthaven Completely Stops Showing Up In Court, Loses Key Case, Key Appeals And 'Big Name' Lawyer Who It Still Owes Money To

from the death-of-righthaven dept

Over the past few weeks there's been some more Righthaven news, as the company has continued the trend it started last year of not showing up and missing deadlines. Now it appears that it's just completely given up. CEO Steve Gibson is working at another job (while being investigated by the Nevada Bar) and main lawyer Shawn Mangano apparently has completely stopped responding to all attempts to contact him, even by the court. All this has resulted in the key appeals in its cases to be dismissed "for lack of prosecution." Last Thursday it also had a key case closed, with prejudice, driving another (yes another) nail in its already buried coffin.

Also, you may recall that, last summer, Righthaven trumpeted the fact that it had hired famed copyright maximalist lawyer Dale Cendali to help with some of the cases -- including this key one against the Pahrump Life blog. This hiring was part of why Gibson insisted that the courts respected Righthaven (even as they were losing case after case). Cendali is considered a bigshot in some copyright circles, leading some to think that Righthaven might actually have some ability to pull out of its tailspin. However, the sum total of her contributions to Righthaven's legal fights appears to have been a ridiculous filing last summer in which she tried to compare Righthaven to patent trolls -- an argument the court later found entirely unconvincing.

Cendali has now said she's withdrawn from all Righthaven cases, even though her name still appears officially as counsel for the company in one of the recently dismissed appeals. She claims that she was really just hired for couple small issues which she completed last summer (such as the filing mentioned above) and had been told that Mangano would handle the rest of the cases. She also has told the court that Righthaven hasn't paid her firm what it owes. Actually, other than the initial retainer, she says Righthaven't hasn't paid any other legal fees. In other words, Righthaven paid the initial retainer fee so it could blast out the fact that it hired her... and then refused to pay for any of the actual work she did. Par for the course for Righthaven.

Either way, with the dismissals of the key appeals, as well as the Pahrump Life case -- which was considered a key fight -- combined with the fact that pretty much everyone involved with Righthaven seems to have moved on to other things and is flat out ignoring anything Righthaven-related, when do we finally get to call the official time of death for Righthaven?

Filed Under: copryight, dale cendali, shawn mangano, steve gibson
Companies: righthaven

New Ruling In Old Righthaven Case Makes Two Important Points: Protecting Fair Use And Secondary Liability

from the good-job dept

One of the key cases in the Righthaven saga is the case against the Democratic Underground. While it seemed to take a backseat to the Hoehn case, the Democratic Underground case was one of Righthaven's first big overreaches, and was rather important for revealing that the copyright transfer between Stephens Media's Las Vegas Review Journal and Righthaven was a complete sham. On Friday there was another ruling in that case that actually makes two very important points that could be quite helpful in other cases (even if this is only at the district court level). As put forth in the ruling (pdf and embedded below):

THE COURT HEREBY DECLARES AS FOLLOWS:

1. That Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Cartoon Network LP v. CSC Holdings, Inc,, 536 F.3d 121 (2d Cir. 2008).

2. That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground and against Counter Defendant Stephens Media, LLC.

That first one is the really important one. Righthaven relied heavily on the fact that it could sue sites that had not officially designated a DMCA agent, arguing that if you don't do that, you don't get any of the DMCA safe harbor protections. While you absolutely should designate an agent if you run a blog and allow any commenting on your site, I've always suspected that if it went to court, a site that did not designate an agent wouldn't automatically be liable for postings of its users. That's because it's just common sense that liability should be on the person doing the posting, not the tool used to do so -- even if the owners of the tool didn't designate a DMCA agent.

And that's basically what part 1 of the ruling above states. Even without a designated DMCA agent, the court found that the Democratic Underground site was not liable for direct infringement, because there was no element of "volition or causation" by the site itself. This is pretty important, and hopefully other sites that are sued without having designated an agent will similarly push back on claims that this automatically makes them liable. Good to see common sense applied here.

The second point is also important, noting that a five sentence excerpt of a longer article, with a link back to that article, is fair use. Considering how many newspapers have been trying to claim otherwise, it's nice to see this stated in black and white yet again.

Kudos to Judge Roger Hunt for a simple and to-the-point affirmation of common sense against Righthaven.

Filed Under: copyright infringement, democratic underground, las vegas review journal
Companies: righthaven

Whatever Copyrights Righthaven Might Actually Have Owned Now Transferred To Receiver For Auction

from the and-now-what? dept

This could get interesting. The latest news in the ongoing Righthaven saga is that the judge in the Hoehn case -- who had ordered Righthaven to pay attorneys fees which it never paid -- has now ordered that all of Righthaven's "intellectual property," including the many copyrights in dispute, be turned over to the receiver for auction. As you may recall, Righthaven's domain has already been auctioned off, but now it appears the copyrights will be too.

Of course, this is a bit tricky, since it's unclear what, if anything, Righthaven actually "owns" here. Even the company (when it bothered to show up in court, which was increasingly rare) started to claim that it really only held the bare right to sue -- which is what sunk its cases, since that right cannot be separated from the other, enumerated rights under copyright law. But, as the court noted, even if there's a dispute over what rights Righthaven technically has under the agreements it made with Stephens Media's Las Vegas Review Journal, the company is registered as the copyright holder on hundreds of works. And those are all being auctioned off:

In connection with the Defendant’s judgment enforcement efforts, the Court appointed the Receiver to, among other things, seize the copyrights assigned to Righthaven by various entities (the “Copyrights”), as well as its trademarks and other intangible property, so that they could be sold at auction. (Doc. # 62, 66.) Despite the Receiver’s efforts, Righthaven has not transferred its intellectual property. (Docs. # 70, 81, 82.) The only property that the Receiver has been able to obtain and auction is Righthaven’s former domain name, <righthaven.com>, which was sold for more than $3,000 in a commercially reasonable auction (Docs. # 81, 82).

Based on the evidence submitted to the court by the Receiver (Docs. # 70, 82), Righthaven has failed to substantively participate in the orderly disposition and sale of its intangible assets as ordered on December 12, 2011. (Doc. # 66.) Moreover, Righthaven failed to appear at the originally scheduled January 5, 2012 debtor examination in this case, (Doc. # 71), and failed to appear at the March 5, 2012 hearing giving rise to this Order. (Doc. # 88.)

In light of Righthaven’s lack of participation in these proceedings, and Hoehn’s entitlement to relief (Docs. # 62, 66), this Court concludes it is appropriate to transfer such rights as Righthaven may still hold in Righthaven’s intellectual property to the Receiver, Lara Pearson. The Court deems Righthaven’s conduct in this case to constitute its consent to this Order.

This Court acknowledges that there is a dispute over what intellectual property rights Righthaven actually possesses. Nonetheless, the Court may use its powers under 17 U.S.C. § 201(d)(1) to transfer Righthaven’s copyright rights, whatever they are deemed to be, to the Receiver for auction pursuant to the Court’s December 12, 2011 order (Doc. # 66). While Righthaven has argued now that it does not have more than the bare right to sue, as this Court previously held, Righthaven does possess copyright registrations that can be assigned by operation of law. The copyright registrations to more than 275 works are in Righthaven’s name, can be transferred by this Court, and can then be auctioned by the Receiver.

The order then goes on to list out the 275 copyrights that are registered in Righthaven's name. Even if the transfers were a sham, the registrations still exist. What can actually be done with them is an open question, because the sham transfer likely means that the rights are still really Stephens Media's, and if there ever were a legal dispute that would be an issue. But, in the meantime, you may soon be able to "own" a piece of copyright troll history: one of the bogus Righthaven copyright registrations, with which you can legally do, well, absolutely nothing. Though, it could be fun to see if you could convince the Las Vegas Review Journal that it needs to pay up for continuing to host the article for which you hold the copyright registration...

Filed Under: copyright, hoehn, receivorship
Companies: las vegas review journal, righthaven, stephens media

The 'New' Righthaven Offers Discount To Techdirt Readers Who Want 'Spineful' Hosting

from the enjoy dept

Remember Righthaven? No, not that Righthaven who sued tons of people and companies on questionable claims in order to get them to cough up settlements. We're talking about the other Righthaven... the Swiss company that bought the Righthaven.com domain that was auctioned off after the old Righthaven failed to pay the attorneys' fees it owed. The new Righthaven is all about being the anti-Righthaven in many ways: it's about setting up an ISP that provides "spineful" hosting, that will stand up to questionable takedown attempts. This does not mean that they're offering "no questions asked" type hosting that spammers and malware providers love. Quite different. They're simply looking to host those who often have their free speech rights challenged, and who won't fold under questionable pressure without a valid legal basis. As the company explains:

There are many hosting providers who maintain a "no questions asked" policy with respect to their clients and use this approach and lax, evasive or non-existent abuse handling infrastructure to effectively provide a safe-harbor for bad actors. That is not our business model.

Instead, we focus on hosting expression that has traditionally been subjected to frivolous legal threats based on its content. Our approach focuses on our team's wealth of expertise in dealing with high tech abuse and legal issues and our willingness to zealously defend our clients from frivolous, manipulative, abusive or outright fraudulent litigation. Our experience and expertise in issues ranging from fair-use to libel and whistle-blowing protections means we can often gently (and sometimes firmly) remind third parties about the many protections afforded legitimate publishers in these areas.

Often a proactive, responsive and competent abuse management team engaging in an open dialogue and discussion with copyright holders or their legal counsel is all it takes to close what might otherwise escalate into a frivolous suit.

But dialogue isn't always enough. Against this unfortunate possibility we have a second level of defense: In cooperation with our upstream providers in Switzerland we have some of the best free speech counsel in the world on retainer.

The folks behind the company, which is based in Switzerland, admit that they're a bit more expensive than other hosting companies, but that's to cover the cost of actually having people who will take the time to understand legal threats made against you.

Either way, the kind folks over at this new Righthaven are offering a 15% discount to Techdirt readers on everything except their bandwidth upgrades as a "thank you" for speaking out on various issues lately:

Remember us? The upstarts over at Righthaven.com? Providers of "spineful" shared, virtual private server and dedicated server hosting services from the copyright-sane environs of Switzerland?

We've enjoyed your coverage of SOPA, PIPA, ACTA (and us) and since we're launching this coming week, we'd like to give your readers the first bite at the jellyfish (so to speak).

So for the next 14 days new accounts opened by Techdirt readers get 15% off of everything except bandwidth upgrades. Readers who sign up for 3 or 6 months can lock that discount in for the duration.

Just browse on over to our order page at https://plutus.righthaven.com/ and type "dirtlaunch" when prompted for a promotion code.

Just our way of saying "Thank you" for increasing digital rights awareness.

We certainly cannot vouch for these guys, but we absolutely appreciate the need for more ISPs that have a spine in protecting their customers' free speech rights. Hopefully more ISPs will realize that that's a good selling point to potential customers.

Filed Under: free speech, hosting, spineful
Companies: righthaven

97 Las Vegas Karaoke Locations Sued By 'Righthaven Of Trademarks' Demanding $500 Million

from the why-not-copyright? dept

Steve Green, who was the absolute best reporter covering the Righthaven saga, recently wrote about the fact that 97 Las Vegas karaoke providers were recently sued by a company called Slep-Tone Entertainment Corp., which apparently mainly does business as "Sound Choice," selling various karaoke content -- music and videos. Green notes that someone familiar with Slep-Tone has called it the "Righthaven of trademark infringement," though there are clearly some differences. First, though, the similarities: like many intellectual property "troll" operations, it appears that the goal of these efforts is to pressure companies into settlements, rather than actually get a judgment from the court. This has become an unfortunately common business model, where companies with a claim over some IP sue a ton of others at once mainly just to put pressure on them to "settle" for some amount -- often significantly less than what it threatens in the letter. And, it appears that Slep-Tone has at least some history of filing these kinds of mass lawsuits against a ton of defendants at once.

Of course, there are also lots of differences with Slep-Tone, in that it actually makes a product -- even if it's a somewhat silly and potentially obsolete product. I was a bit confused by the original article, because it never made clear what the actual trademark in question was -- and reading through some other lawsuits, it appears to be on the "Sound Choice" name and possibly logo, which is often displayed on the karaoke videos it produces. The other thing that confused me for a bit was why this was a trademark dispute, rather than a copyright dispute. After all, the key claim is that these karaoke locations were copying the content -- the music and the videos -- for use in karaoke machines, so shouldn't there be a copyright claim? But then it hit me: this is karaoke -- meaning that Slep-Tone probably doesn't hold the copyrights to the music in question in the first place. While it likely licenses the music for its karaoke productions, that license wouldn't necessarily give it the right to pursue others for copyright infringement on the music. Not knowing where it gets the videos from, I have no idea if there's a copyright issue there too, but it doesn't look like the lawsuits make any kind of copyright claim at all. Instead, they seem to focus on the use of the logo in the video to suggest trademark infringement -- which seems like an interesting way to get around the lack of copyright for copied content.

That said, again reading through some previous efforts -- and rulings (pdf) -- lends credence to the idea that these are questionable "trollish" claims in the first place. For example, in that ruling, linked above, the judge grants a summary judgment against Slep-Tone for failing to show any real evidence that its trademark was actually infringed on in the case. Instead, the company seems to rely on some very vague statements to claim infringement where none may exist:

While the Court sympathizes with Slep-Tone's claim that counterfeiting is a rampant problem that has devastated the karaoke industry, Slep-Tone has failed to direct the Court's attention to any evidence in the record tending to show either unauthorized use of the SOUND CHOICE marks, or that any of the allegedly infringing material originated with Defendants. In its response... Slep-Tone relies exclusively for evidence of unauthorized evidence of unauthorized use by Defendants on the affidavits of [two former employees of the defendant and one "purported expert"]... [None of these affidavits] establish any such facts. Instead, they provide vague and conclusory statements without foundation.

Whether or not Slep-Tone has a legitimate claim, it seems like we're seeing more and more of these kinds of cases -- using patents, copyrights and trademarks to bring mass lawsuits against a number of companies who may or may not infringe, where the goal often appears to be to push for settlements for a few thousand dollars (often cheaper than defending the lawsuit). It seems like this is a form of abuse of the judicial system, effectively relying on the threat of an expensive trial as a weapon to pressure companies (and, in some cases, though not in the above cases, individuals) into settling and just paying up to avoid the hassle and expense.

I'm not sure what the solution is to these kinds of lawsuits, but it seems worth calling out just how common these kinds of activities are becoming. IP holders using the "threat" of a lawsuit as a key component of a business model seems like a serious problem both for defendants in those lawsuits, as well as the public, which funds the courts through taxes. I'd be interested in ideas for ways to prevent this kind of abuse of the judicial system, where the key role of the courts is merely to act as "the heavy" in a "business model." That feels a little too much like a traditional protection racket.

Filed Under: karaoke, sound choice, trademark
Companies: righthaven, slep-tone

New Righthaven To Offer 'Hosting With A Backbone'; Will Avoid Unnecessary Takedowns

from the interesting-turn-of-events dept

Last week, some folks here pointed out that the new Righthaven.com -- bought during the asset auction of Righthaven's domain for $3,300, as part of the effort to fulfill Righthaven's obligation to pay legal fees for one of its (many) bogus lawsuits -- had put up a page joining the anti-SOPA/PIPA protests. That certainly seemed encouraging, and suggested that (not all that surprisingly, really), the domain had been bought by someone who took a dim view on copyright maximalism. I was going to write up something on that, but got busy with other, more timely, coverage on SOPA/PIPA. However, I've now gone back to the new Righthaven, and it appears that they've announced plans to become a hosting provider "with a backbone," willing to withstand efforts to take down content on a questionable legal basis. In a bit of irony... they've hired Righthaven-slayer, Marc Randazza, to act as their lawyer.

Some reports have suggested that the new owner is a hosting company in Switzerland, called OrtCloud, which focuses on providing "privacy-friendly" hosting. The new Righthaven.com basically has a manifesto, which is worth reading, first talking up the fact that anyone can publish online these days, and how important that is:

You are the most important part of the digital economy. Period.

You drive the discussion. You draw from the well of ideas, and refill it. You apply your particular character and unique vision to those ideas. You synthesize. But most importantly, you publish. That actually deserves its own line.

You publish.

But somewhere, sometime not too long ago, a large part of the global economy simply forgot about you and the importance of the simple act of clicking the "submit" button.

In retrospect this seems strange. By and large the big, flashy heroes of the digital age (and we love them, we really do) claimed their laurels for producing tools like operating systems, software, communications networks, and hardware for you. To make it easier for you to hit "submit." To extend the range your content could travel after that mouse click.

And yet, to much of the economy today and certainly to most politicians, you have become little more than a means to an end.

That is a sad state of affairs.

As for what Righthaven will actually provide? They'll be a hosting company that doesn't fold like a cheap card-table, apparently:

Righthaven.com will provide shared and dedicated server hosting services to clients who expect just a little more backbone from their provider. Well, actually a lot more backbone.

We call it "spineful hosting" and not only do we think it is a "great idea"^TM but as nearly fanatical advocates for the freedom of expression we are pretty sure it is also "the right thing to do."^TM Then again, we are prone to agree with ourselves quite often.

And they're teaming up with upstream partners who have a similar outlook:

Recent events and the pavlovian salivating of certain legislators upon hearing the fundraising dinner bell ringing from the Beverly Hills Hotel have certainly reminded us that the internet naming system is a serious choke point for any online enterprise. In selecting our partners we wanted to make sure we teamed up with a domain registrar and DNS host who had a history of treating third party requests skeptically, but respectfully. We wanted a partner who wouldn't dissolve into incontinent fits and roll over on getting a call from United States Senator Joseph Lieberman's office intern, for instance. We found that partner in Toronto based easyDNS. easyDNS has been providing clueful and spineful DNS and registry services since 1998. Their four-continent anycast DNS cluster fits the bill. Plus, easyDNS' founder, Mark Jeftovic, is the essence of a spineful owner.

Seems like an excellent use of the Righthaven.com domain...

Filed Under: copyright, hosting, marc randazza, righthaven.com
Companies: ortcloud, righthaven

Righthaven CEO, Plus Two Former Righthaven Lawyers, Being Investigated By Nevada State Bar

from the hits-just-keep-on-coming dept

It appears that the Nevada State Bar has decided that some of the complaints against Righthaven that were filed over the past couple of years are worthy of a more detailed investigation. The bar has initiated an inquiry against Righthaven CEO Steve Gibson, as well as two of Righthaven's former lawyers, specifically regarding Righthaven. According to Vegas Inc.:

Phil Pattee, assistant Bar counsel, said the agency couldn’t disclose the nature of the grievances against the attorneys or whether they relate to complaints from outside parties or the Bar’s own review of the Righthaven cases or both. But he confirmed the grievances relate to the attorneys’ work for Righthaven.

“We’ll be asking them about Righthaven,” he said.

One other interesting tidbit in the article: apparently Gibson has a new job -- back to working as a lawyer, now in the Las Vegas office of Detroit-based law firm, Dickinson Wright.

Gibson, not surprisingly, is outwardly confident that this inquiry is not a big deal:

“I will be responding to the informational requests of the Bar and believe that after such responses and clarifications, the matter will be properly addressed. Miss Lowry indicates her concurrence,” Gibson said Thursday.

Of course, this is the same Steve Gibson who insisted that the courts believed in Righthaven and believed the company was "genuine," but were just pushing back to "give some guidance" for Righthaven competitors. Of course, in both cases he may turn out to be right. It's just that the "matter may be properly addressed" in a manner that Gibson does not like. And, as for "guidance," it appears that the guidance the courts were giving Righthaven competitors could be summed up as "don't do anything that Righthaven has been doing."

Filed Under: investigation, nevada, state bar, steve gibson
Companies: righthaven

Righthaven Actually Shows Up In Court, Whines About 'Scorched Earth' Attacks Against It

from the can-we-define-irony? dept

Righthaven became famous for being one of the first copyright holders to go after alleged online infringement... by suing first, without ever sending any sort of takedown notice. That, alone, raised some questions about Righthaven's tactics. The company also -- for no clear reason -- demanded not just payment, but also that sites turn over their own domain names. It was this level of intimidation (via the legal system) that caused many sites to simply settle, rather than pay to fight it. If ever there was a company guilty of using overly aggressive litigation techniques, it would be Righthaven. And yet... in a rather ironic move, the company is now complaining about the tactics used against it by lawyer Marc Randazza, who has been relentless in pursuing the attorney's fees that the court has ordered Righthaven to pay.

Though, yes, this does mean that Righthaven's lawyer, Shawn Mangano, actually showed up in court this time. Righthaven also complained that Randazza's efforts were just to get press attention (well, if Righthaven isn't going to pay them, they might as well get publicity some way...). Either way, the judge issued a protective order blocking anyone from revealing the financial information uncovered during a debtor's examination of Righthaven CEO Steve Gibson and his wife.

Separately, an appeals court rejected Righthaven's attempt to get an injunction to stop Righthaven assets from being auctioned off... It seems like another bad day for those supporting Righthaven.

Filed Under: appeal, marc randazza, scorched earth, shawn mangano, steve gibson
Companies: righthaven

Las Vegas Review-Journal Publishes CEA OpEd Calling Out Senator Harry Reid Killing Innovation By Supporting PIPA

from the wronghaven dept

Well, this is interesting. The Las Vegas Review-Journal (LVRJ) -- yes, the very newspaper that was the driving force behind giant copyright troll Righthaven, and whose then-publisher insisted that a single non-commercial infringement was the equivalent of stealing his car -- has published an anti-PIPA/SOPA OpEd piece, written by CEA boss Gary Shapiro. Shapiro doesn't mince words, talking about the importance of innovation and directly calling out Nevada Senator Harry Reid for supporting the bill:

Las Vegas' role as a leader in innovation is somewhat ironic, given that Nevada Sen. Harry Reid, who has never once visited the CES, is a leader in efforts that oppose the type of innovation and technology fueling CES and other events. Unlike the rest of the pro-CES, pro-innovation Nevada delegation, Sen. Reid stands alone. The current innovation-throttling legislative fad is focused on "Internet piracy." Majority Leader Reid said he would bring the Protect IP Act (PIPA) to the Senate floor this month despite it being opposed by virtually every innovation and technology company and almost everyone who understands and uses the Internet.

It highlights how out of touch Washington has become with modern communication and use of the Internet. The goal of protecting intellectual property from digital theft is the right one, but the overreaching measure Sen. Reid is pushing swiftly through Congress will chill Internet innovation, economic progress and job growth. It's a product of copyright extremists pouring money -- more than $91 million in 2011, more than they've ever spent before -- into influencing the legislative process.

You would think, at some point, Reid would realize what a mistake he's making. The companies at CES are not "piracy apologists." Most of them have big concerns about counterfeit products and trademark violations. In fact, some of the companies here are among the most aggressive on trademark litigation (something I think many go too far on). And yet... when Senator Wyden and Representative Darrell Issa took the stage on Wednesday to explain why they think PIPA and SOPA are dangerous, they got a standing ovation from the audience.

Supporters still want to believe that the "opposition" to these bills is just Google and some random internet kids. If Harry Reid actually ever bothered to come to one of these events -- where he could see the innovation and the job creation going on, perhaps he'd realize that the concern is real, it's serious, and it's widespread.

Filed Under: copyright, gary shapiro, harry reid, innovation, las vegas, lvrj, pipa, protect ip, sopa
Companies: cea, righthaven, stephens media

Righthaven.com Domain Sells For $3,300

from the not-that-much dept

Andrew Allemann alerts us to the news that at the close of the Righthaven.com domain auction, the domain has sold for... $3,300. That's not going to do much to help pay off the attorney fees owed to Marc Randazza. Now we just have to wait to find out who bought it and what they're going to do with it.

Filed Under: auction, domain name, hoehn
Companies: righthaven