RIAA Really Planning To Join Righthaven Fight

from the incredible dept

We'd noted that the RIAA was thinking about joining the Righthaven appeal in the Hoehn case, specifically to argue against the fair use finding (the RIAA: not a fan of fair use rulings that say fair use can exist on the use of full works). As you can see embedded below, a lawyer representing the RIAA and the Association of American Publishers (AAP) is planning to try to join the case, arguing that the issue of standing (i.e., the fact that Righthaven doesn't have the copyrights in question) should preclude the court from even considering the fair use question. The letter below is from Hoehn's lawyer, Marc Randazza, explaining why this is not a wise move on the part of the RIAA and AAP. Here's a snippet:

If you have actually managed to convince your clients that it is a good idea for them to spend tens thousands of dollars (or more) in this case for the sole eventual purpose of merely costing Mr. Hoehn money, you can rest assured that it will be a public relations negative for them, in no small part due to Righthaven’s poor handling of this case, along with hundreds of others, from its inception to present. I strongly suggest that you consider recommending a different "make-work" project for your clients. I understand that in this day and age of biglaw layoffs, it is a constant battle to make sure that your existence is justified on the firm’s billing ledgers. This is the wrong case with which to round out your sheet. I can assure you of that. Your clients will waste money and all the money will buy them is the opportunity to look like idiots.

Once again, the RIAA is pretty braindead when it comes to any sense of what the PR impact of its actions would be, so I doubt it'll change its mind here. The standard thinking is just "expanding fair use is bad, we must fight it at all costs."

Filed Under: copyright, fair use, hoehn, standing
Companies: apa, riaa, righthaven

Righthaven Appeals The Idea That Using Entire Work Could Be Fair Use

from the and-then-cites-a-case-that-proves-it-wrong dept

Righthaven has finally gotten around to filing its official appeal in the case against the non-profit Center for Intercultural Organizing (CIO). If you don't recall, this was the case in which the judge ruled at the summary judgment stage in in favor of fair use, even though an entire article was used (the issue of Righthaven's standing concerning whether or not it actually held the copyrights in question was not raised in this case, since it was before the agreement between Stephens Media and Righthaven became public). The argument is embedded below, but Righthaven basically hits on two points:

1. The judge erred in ruling on fair use at this point in the process.
2. The judge's fair use analysis itself was wrong

The first argument may have some legs. It's unfortunate and stupid, but traditionally, fair use is only a "defense" that can be raised later in the process. Righthaven basically argues that this was too early in the process to determine fair use. This part of the argument could get interesting, because if the appeals court determines that the lower court was correct in its process, that could open the doors to courts dumping bogus lawsuits via a fair use claim much earlier in the process. That would certainly increase the power of fair use (if only slightly). That would be a good thing, but I'm not holding my breath.

The second argument focuses on the actual fair use analysis, and suggests that using an entire work cannot be considered fair use. It relies, almost entirely on the Worldwide Church of God case in which the appeals court ruled that a church was infringing on another church's book, by distributing the whole thing, despite it being a nonprofit. The two key issues here are whether or not the non-profit status matters, as well as whether or not it can still be fair use when the whole thing is used. The WCOG case said that the full use was not fair use and that even as a non-profit, since it was used for seeking donations, it worked against fair use.

While I have trouble with the reasoning in the WCOG case on many fronts, I'm not sure that it will help Righthaven all that much here. The distribution of the book in that case was much more closely tied to raising funds than a nonprofit posting a news article on its blog. Claiming otherwise is a stretch. As for the 100% use, Righthaven has very little argument here at all. Multiple courts have found that full item use can still be fair use... including in one of the cases Righthaven cites for its own argument, Hustler Magazine, Inc. v. Moral Majority, Inc.,. In fact, if you read that ruling, you'll see the court admitting that while it had suggested in the past that wholesale copying shouldn't be fair use, in this case it was reminded that "copying of an entire work does not preclude fair use." In other words, the very case Righthaven cites seems to argue against its own point here. But isn't that just like Righthaven?

Filed Under: appeals, fair use, nonprofit, summary judgment
Companies: cio, righthaven

Stephens Media Completely Capitulates In Democratic Underground/Righthaven Case

from the fair-use,-ftw dept

The key Righthaven case, in which the details of the strategic agreement between Righthaven and Stephens Media were finally released, was Righthaven's lawsuit against the Democratic Underground. DU, with help from lawyers at the EFF and Fenwick and West, countersued Stephens Media, arguing that it, not Righthaven, was really behind the lawsuits. That resulted in the release of the agreement between the two companies, and the court dismissed Righthaven from the proceedings... while keeping Stephens Media in the case. The Democratic Underground filed a motion for summary judgment... and in its response, Stephens Media has almost totally capitulated -- admitting that the Democratic Underground's use was "fair use" (full motion embedded below):

While Stephens Media disagrees with DU's characterizations of certain facts that are not material for purposes of the present Motion, it does not contest the substantive arguments presented by DU on the issues of volitional act and fair use as applied to the material facts of this case.

In other words, Stephens Media -- who according to the strategic agreement, had to give Righthaven the green light to sue -- now admits that the use by DU was fair use.

From there, Stephens focuses on a separate issue: making sure that additional details of its business relationship with various companies stay secret. Apparently, a number of documents have been filed under seal, and Stephens wants to make sure they don't see the light of day. Basically, DU wanted details of syndication relationships that Stephens has with other parties as part of its fair use argument, but Stephens is now giving them that argument, saying they agree it's fair use... just let us keep those other deals secret. But on the major point of the lawsuit, the copyright infringement, Stephens has now flat out said that it agrees the use was fair.

I do wonder if this opens the company up to possible problems, though, considering the belief in some courts that a copyright holder must consider fair use before taking action against someone for potentially infringing. Either way, it's clear that Stephens wants no part of continuing to fight Righthaven's fight here.

Of course, this is really yet another example of why something like SOPA is such a bad idea. Imagine Righthaven in a post-SOPA era? Remember that it was already arguing in each of its lawsuits that it should get the domain names of everyone it sued (based on absolutely nothing). If SOPA had been around, Righthaven would have been able to cause even more trouble for sites like DU, potentially cutting off all funds while the issue was litigated. Is that really the future we want?

Filed Under: copyright, fair use
Companies: democratic underground, eff, righthaven, stephens media

RIAA Thinking Of Backing Righthaven

from the can-they-get-any-more-out-of-touch dept

Every time you think the RIAA can't make things even worse for itself... it does. The latest is that it's apparently considering helping Righthaven out. Righthaven! The company that has become the total laughingstock of the copyright world, that is on the losing end of a bunch of cases and is desperately trying to get out of paying all the attorneys' fees awards that are being given to the companies, individuals and sites it has sued. Of course, as some have noted, the good thing about Righthaven is that it has tee'd up a bunch of rulings that will be useful precedents in other copyright cases.

And that's what has the RIAA scared.

In particular, the RIAA is freaked out about a couple of rulings saying that even reposting full articles can be fair use. That has the RIAA shaking, because the big labels hate the concept of fair use. The major labels are still upset at the idea that the Campbell vs. Acuff-Rose ruling means that commercial use can still be fair use. And they love the the Bridgeport Music ruling that wasn't about fair use, per se, but did take away de minimis use, saying "Get a license or do not sample."

So, now the RIAA is realizing that Righthaven -- and in particular the Hoehn ruling, which lays out in great detail why the full use of a copyrighted offering can still be fair use -- is suddenly an important battlefront in its war on fair use. Just having the line from the case "wholesale copying does not preclude a finding of fair use" freaks the RIAA out.

So we've now seen that RIAA's chief apologist litigator is suggesting that perhaps the RIAA is going to get involved in the fight (from an interview behind a paywall, so we'll just quote her words) concerning the fair use finding in Hoehn:

"From our perspective, that just can't stand."

That certainly suggests that the RIAA is thinking of inserting itself into the appeals process here. Probably with an amicus brief, but it makes you wonder if they won't also consider figuring out ways to fund Righthaven to keep it afloat. There are already quite reasonable concerns that the company is effectively insolvent due to all the legal fees it owes to those it has sued. Either way, when you're at the level where you're joining forces with Righthaven, you've really hit the bottom of the barrel.

Filed Under: commercial use, copyright, fair use, full work, hoehn, jennifer pariser, music
Companies: riaa, righthaven

Randazza Seeking Sanctions Against Righthaven Lawyer For Going Through Charade Yet Again

from the again? dept

Two bits of Righthaven news here. Last week, we wrote about the company losing yet again and being told to pay legal fees, yet again. We noted that the minutes from the court had mentioned that Righthaven's lawyer, Shawn Mangano, had been scolded by the judge. Well, now the full transcript of the hearing is out, and it's worth the read (embedded below). Basically, the whole hearing was totally unnecessary, and was in part due to Mangano's failure to file the necessary documents on time (over which he appears to be confused). Either way, the whole hearing was pointless, and it's pretty clear that the judge is fed up and upset that such a hearing had to even be held in the first place. It sounds like the only reason sanctions weren't issued against Mangano is that the judge is not a fan of sanctioning attorneys at all, but suggests he came close in this case:

Well, I quite frankly think, Mr. Mangano, that you could have handled this a lot better if you would have placed yourself in the position of somebody other than yourself by looking at it and seeing what hoops you were making opposing counsel jump through that are totally unnecessary.

I have an extraordinary dislike for assessing attorneys' fees against attorneys, and I am not going to assess them against you under 1927. But I can tell you right now that I am right on the cusp of doing that.

I think you could have been a lot more civil and a lot more understanding about this. And I don't like to impose sanctions against attorneys, because I think it lives with them for a long time.

What happens to your client is another matter, and I am really not concerned with that. But I am telling you right now, you've got more stuff to do in this Court, and you better start thinking in terms of civility if you don't want me to jump on you with both feet.

While Mangano may have personally dodged a bullet in Colorado, that doesn't mean he gets to avoid similar problems back in Nevada. There, the Randazza Legal Group (who was also involved in the case above, and many, many other Righthaven cases) has filed for direct sanctions against Mangano, in yet another Righthaven case, noting that Righthaven has lost on standing so many times, that it's vexatious litigation to move forward with another lawsuit:

The fact is that after Mr. Mangano and his client lost the exact same argument eight times, Mangano still persisted in forcing this defendant to litigate the same issue a ninth time. It is the Defendants' position that perhaps the first time that Mangano signed pleadings in direct contravention with the 9th Circuit’s holding in Silvers, it could have been a forgivable attempt. The same may have been true for the second and third times, with declining defensibility. When it came to being told eight times that he brought an unsupportable claim before the court, Mr. Mangano under a clear obligation to exercise some degree of client control; to refuse to bring the exact same arguments; or to dismiss a case with an inescapable outcome, such as this one, rather than to force a defendant to litigate the same exact issue a ninth time on grounds identical to the previous eight defeats. Forcing this issue nine times had no effect except to punitively impose litigation expenses on this Defendant. This Defendant deserves to be made whole for the expenses incurred due to that misconduct.

I would imagine that it can't be much fun to be a Righthaven lawyer at this point in time.

Filed Under: copyright, sanctions, shawn mangano, vexatious litigation
Companies: righthaven

Righthaven Loses Again, Has To Pay More Attorneys Fees... And Has Lawyer Scolded By The Court

from the schadenfreude dept

The hits just keep on coming for Righthaven. Having already lost in Colorado, in its case against Leland Wolf (though, likely in all of its cases, since the same judge is handling them all), Righthaven has been told that it needs to pay Wolf's legal fees as well, to the tune of $32,147.50 along with additional costs of $1,000.85. Plus, Wolf and his lawyers have been told they can add on some more legal fees for the costs of the hearing in question. But, really, the best part of the minutes from the 13 minute hearing are that immediately after Righthaven's lawyer, Shawn Mangano, makes his argument, the minutes note:

The Court admonishes Mr. Mangano regarding his lack of civility.

Perhaps he's too busy trying to protect Righthaven assets from the US Marshals service to be civil these days.

Filed Under: attorneys fees, colorado, copyright troll, shawn mangano
Companies: righthaven

US Marshal Service Told To Go After Righthaven's Assets

from the is-it-over-yet? dept

The saga of Righthaven continues... and may finally be nearing a close. With Righthaven failing to get a court to change the requirement to put up a bond for the $34k it owes in legal fees for its bogus lawsuit against Wayne Hoehn, the deadline for Righthaven to pay up (or post such a bond) has passed. As such, it appears that the court has now signed off on a writ of execution for the US Marshal Service to seek to get from Righthaven the money owed, including additional accrued costs to make the total at stake: $63,720.80. In fact, they're "authorized to use reasonable force in the execution of this Judgment/Order." It seems that missing deadlines for filings may be the least of Righthaven's problems at this point.

Filed Under: assets, hoehn, righthaven, us marshal service
Companies: righthaven

Righthaven Loses Track Of Its Many Cases; Discovers Four Days Late That It Missed Deadline In Appeal

from the so-professional dept

Righthaven, which already has a history of late filings with the court, using questionable excuses, seems to be working extra hard to make any story about the company appear to be a farce. The latest is that Righthaven's lawyer, Shawn Mangano, just discovered on Monday (October 31st) that the deadline for filing the opening briefs in the Hoehn case, one of its many appeals of cases it has lost, was October 27th. He claims that the court misled him on the phone concerning the timing, though that seems questionable:

Righthaven’s counsel originally requested a telephonic 14-day extension of time to file its opening brief in this matter on October 27, but was advised that its opening brief was not due under November 28, 2011. Upon further inquiry, it appears that the opening brief deadline provided was for an associated appeal in this action concerning an award of attorneys’ fees and costs (Case No. 11-16995). Righthaven discovered this apparent misunderstanding today, October 31, 2011, which is one business day following the October 28, 2011 filing deadline for its opening brief.

Meanwhile, Hoehn's lawyers, from the Randazza Group, aren't buying the excuse and are asking the judge not to grant the belated extension request:

Defendant Wayne Hoehn ("Hoehn"), through counsel, opposes Righthaven LLC’s ("Righthaven’s") Motion for Extension of Time to File Opening Brief (the "Motion"). (Doc. # 4.) Righthaven’s request for an extension is untimely, sought four days after Righthaven’s brief was due - October 27 (Doc. # 1), not October 28, as Righthaven’s counsel misstated in the Motion (Doc. # 4 at 2). The docket’s plain language belies Righthaven’s claims of diligence, as even a cursory check would have revealed, immediately, the appellant’s briefing deadline. Moreover, a review of this Circuit’s law and the context in which Righthaven brings this motion reveals that it is bereft of good faith as well.

Hoehn's lawyers make the case that just the merest ability to check the details would have shown the timing on the case, and Mangano's failure to do so should not result in delaying the case any further.

Righthaven also attempts to blame the Court’s clerk for its untimely motion. (Doc. # 4 at 2). Righthaven’s inability to track its appeals before this Court is not the fault of Court administrators. With six appeals pending before this District – and not a single brief filed despite numerous extensions sought – it is all the more important that Righthaven diligently prosecute its appeals. To date, it has not done so, nor offered any legitimate excuse for failing to abide by the original briefing schedule imposed in a single appeal before this Court.

The instant untimely Motion (Doc. # 4) is Hoehn’s first indication that Righthaven had any issue with the briefing schedule. Having not voiced any objections to the Court’s earlier deadlines, Hoehn’s attorneys have made travel plans, holiday plans, and scheduled other litigation matters with this original schedule in mind. (Decl. of J. DeVoy.) To allow Righthaven’s counsel to attempt to change the clock after time has run out will create serious prejudice to Hoehn’s counsel.

It's somewhat amazing that Righthaven ever accomplished anything, given the way its lawyers have handled these cases.

Filed Under: appeals, copyright, deadlines, hoehn, missed filing
Companies: righthaven

Righthaven Asks Court To Speed Up Ruling Against It So It Doesn't Have To Pay For A Trial

from the just-dismiss-it dept

The Righthaven situation keeps getting more amusing. Apparently one of the cases is actually scheduled to go to trial next week... but Righthaven doesn't want it to go forward because it can't afford to actually go to trial. However, the company seems perturbed that the defendant has filed a motion to dismiss on the same standing issue that's resulted in multiple dismissals in nearly every Righthaven case since it was discovered that the copyright transfer from newspapers to Righthaven was a sham transfer. So, Righthaven has now asked the court (involving a judge who has already ruled against Righthaven) to speed things up and avoid the trial by ordering Righthaven to show cause over the standing issue. Yes, Righthaven appears to be asking the court to speed up the process of dismissing the case, without it dismissing the case directly itself. The defendant, Kevin Kelleher and his lawyers, note the irony here:

Righthaven appears to be inviting the court to commit what Righthaven would contend is legal error by dismissing this action,’’

Righthaven also seems angry that Kelleher hasn't filed for dismissal himself, even though it promised to do so itself. Of course, the reasoning here is that Righthaven (a) doesn't want to actually go through a trial it can't afford, but (b) doesn't want to dismiss because it's still hoping against all hope that it can win an appeal and get these cases reinstated. Either way, it's pretty funny to see Righthaven asking the court to speed up ruling against it.

Filed Under: copyright, nevada, standing
Companies: righthaven

Sanctions Sought Against Righthaven's Lawyers For Not Dismissing Remaining Cases

from the make-it-stop dept

In its continuing effort to put the final nail in the coffin of Righthaven, the Randazza Legal Group has now filed for sanctions against Righthaven's lawyers. The filing argues that, given the multiple rulings in multiple jurisdictions slamming Righthaven's legal strategy and specifically ruling that Righthaven has no standing to sue, while also questioning if there even is any infringement here at all, Righthaven has a duty to dismiss its remaining cases:

Righthaven’s scheme has been rejected nationwide. Within this District, Courts had ruled four times that Righthaven did not have standing to sue its defendants – and that its amendments to the SAA made after filing suit were ineffective – just between June 14 and June 23, 2011.4 To the extent any legitimate question of law existed about Righthaven’s standing to sue in the first place, considering this Circuit’s precedent in Silvers v. Sony Pictures Entertainment Corp., 402 F.3d 881 (9th Cir. 2005), and Sybersound Records, Incorporated v. UAV Corporation, 517 F.3d 1137 (9th Cir. 2008), that doubt should have been resolved in June upon Righthaven’s fourth adverse ruling on standing. Yet, only days away from Halloween, the Defendants in this action continue to bear the costs of litigation establishing Righthaven’s lack of standing. This District has conclusively settled this exact issue, and Righthaven’s consistent argument to the contrary can no longer be advanced in good faith. Righthaven and its Counsel have a duty to dismiss this case, and not to waste the Court’s time or the Defendant’s time and resources in making the exact same arguments, which have been rejected again, and again, and again, and again.

The filing notes that continuing with these other lawsuits isn't just a waste of everyone's time, but reaches the level of vexatious litigation, by pursuing such cases in obvious bad faith. In the case at hand, involving a site called NewsBlaze, Righthaven's lawyer, Shawn Mangano, has been trying to argue that, since its original motion to dismiss didn't bring up the standing issue, it can't be added later. It appears that Righthaven is also trying to re-argue the standing issue to some extent, though as this filing notes, that's settled law in this court:

Righthaven is precluded from further arguing that it has standing to bring this action under the SAA, and that its amendments executed after filing suit are effective, by the doctrine of issue preclusion – formerly known as collateral estoppel. When an issue has been fully and actually litigated, as these issues have been ad nauseam in this District, a party is barred from relitigating the issue.

Will we finally see the end of Righthaven?

Filed Under: copyright, sanctions, vexatious litigation
Companies: righthaven