Righthaven Dismisses Lawsuit After Judge Slams Its Business Model

from the smart-judge dept

It's looking like more and more judges are recognizing that the new found love of copyright trolls, to use the US judicial system as a shotgun to force people to pay settlement fees, is not a proper use of the courts. The company has been losing some important rulings, and has had to drop other lawsuits. Over in Colorado, where Righthaven has been filing a bunch of lawsuits for the Denver Post, Judge John Kane has made it clear that he's not impressed by Righthaven's business model and sees no reason to use the court to help it:

"[W]hether or not this case settles is not my primary concern. Although Plaintiff's business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

This was in rejecting Righthaven's request for an extension for filing its latest motion in a case, which is a really standard thing that judges almost always grant. But here, the judge said no. That alone is a pretty big slam against Righthaven.

Righthaven then quickly dismissed the lawsuit, which had been filed against "a mentally and physically disabled" 20-year old. Amusingly, in the dismissal notice, Righthaven lashes out at the defendant for using the lawsuit to attack it and its business model, and says that's why it has decided to drop the lawsuit. Uh, yeah, right.

That sort of petulant tone probably isn't going to help Righthaven or its client, the Denver Post, considering that the judge here, Judge Kane, is the judge for all of Righthaven's Colorado cases. Either way it's nice to see more and more courts pushing back on these kinds of lawsuits. I'm curious to hear the responses of those in our comments who thought these lawsuits were all perfectly legit when they were being filed.

Filed Under: business model, copyright, copyright trolls, courts
Companies: righthaven

Righthaven Dismisses Lawsuit Against Reporter; Still Seems Confused About The Whole Thing

from the well,-there-you-go dept

A few hours ago, we wrote about Righthaven's painfully stupid lawsuit against Eriq Gardner claiming copyright infringement for an article he wrote about a previous Righthaven lawsuit, that included an image from Righthaven's own legal filing. After widespread mocking, it appears that Righthaven has realized it totally and completely screwed this one up, though it seemed to take a little while. This morning, reporter Joe Mullin called Righthaven CEO Steve Gibson, and he insisted this was going to be "litigated before the court," and seemed to suggest that Righthaven was confident it was right here.

Clearly, others in the Righthaven office talked some sense in to Gibson because sometime after that (but apparently still in the morning), Righthaven filed for a voluntary dismissal of the lawsuit, with prejudice (meaning it can't file again). Of course, Righthaven even screwed that up, with its initial filing claiming it was to be done without prejudice in one point and with it in another. Eventually it got it right.

As for Righthaven's explanation, contrary to the claims of its CEO, the two Righthaven lawyers who Nate Anderson at Ars Technica spoke to, Steven Ganim and Shawn Mangano, appear to give a totally different story. They claim that they realized it was a mistake as soon as they heard about it, and claimed this was just a "clerical mistake," and they never meant to sue a reporter writing about their cases. That is, frankly, completely unbelievable. They filed a federal lawsuit against an individual, including an exhibit which clearly showed the entire original article from Gardner. Either they didn't read their own exhibits, didn't understand what they were doing, or knew full well that they were suing someone who was reporting on their own case. I can't see how any of those options makes Righthaven look particularly credible.

Filed Under: copyright, eriq gardner, fair use
Companies: righthaven

Righthaven Sues Reporter Who Wrote About Righthaven For Including Image From Its Lawsuit

from the righthaven-going-down dept

Wow, is Righthaven really pushing the limit these days. While early on the legal shakedown firm focused on suing unsophisticated blog and forum site owners, it seems to be picking battles lately with those who can fight back... and doing so on extremely shaky legal ground. We noted, for example, its last few lawsuits were against media giants including the Toronto Star and Citadel Communications, both of whom are large enough to employ lawyers who understand fair use and how to present a good fair use defense in court. Even so, in both cases, there was a sliver of a claim that those two uses were not fair use.

However, Righthaven has finally really gone over the edge. It's filed a lawsuit so dumb it makes me wonder if they're not looking to get slammed in court. That's because it's sued reporter Eriq Gardner for infringement for an article he wrote for Ars Technica back in December about Righthaven's lawsuit against the Drudge Report. That lawsuit was about Righthaven's favorite lucky charm: a photo from the Denver Post of a TSA agent patting someone down that has appeared in a whole variety of places.

So, let's just start ticking off the many, many ways in which this was a really clueless move by Righthaven:

• First off, Eriq Gardner is unlikely to be a pushover on this topic. While he writes for a few different publications, I believe his main job is writing the Hollywood Reporter's legal blog, THR, Esq., where he covers a ton of copyright stories. This is someone who knows copyright law backwards and forwards.
• Second, it's odd that Righthaven is targeting Gardner directly, rather than Ars Technica (owned by Conde Nast). Steve Green (who is the guy to follow on Righthaven stories) over at the Las Vegas Sun suggests the lawsuit targeted Gardner rather than Ars Technica because Ars Technica has a registered DMCA agent. I'm not sure that actually applies here, though. Gardner's article wasn't a user submission/forum post, but a full article that I assume was officially commissioned by Ars. I don't see how going after Gardner directly makes any sense.
• The key issue: this is about as cut & dried a case of fair use as there ever was. Gardner was writing about Righthaven, and in the article, to demonstrate what Righthaven was suing about, he showed the image (from Righthaven's own legal filing) that showed Drudge using the image in question. Its use is for news reporting and it's commenting on the image's use in the lawsuit. If this isn't fair use, then fair use doesn't exist.

I mean, this lawsuit is so clearly wrongly targeted, I'm wondering if Gardner can't ask for sanctions against Righthaven for filing it in the first place. Anyway, I've embedded both the legal filing and the exhibit that Righthaven used below, showing a copy of Gardner's article, which used an image from Righthaven's original filing (meta enough for you yet?). Remember, this is a public legal filing that I'm embedding below, and if Righthaven has a problem with it, I'm happy to introduce the company to my lawyers who have a keen understanding of fair use, and probably won't be shy in explaining fair use to Righthaven.

Filed Under: copyright, eriq gardner, fair use, righthaven
Companies: righthaven

Big, Big Loss For Righthaven: Reposting Full Article Found To Be Fair Use

from the vegas-smackdown dept

While Righthaven had previously lost one lawsuit on a fair use claim, that one involved only a partial reposting of an article. Righthaven is still appealing that ruling, but it might have a bigger problem on its hands. On Friday, a judge ruled that even reposting an entire article can be fair use, and that he planned to dismiss a case on those grounds. That spells trouble for Righthaven, which would lose the entire basis for its legal campaign and business model for the vast majority of its cases. In this case, the judge clearly understood what's going on. Last year, we had noted that the judge had raised the fair use issue first, even though the defendant, the non-profit Center for Intercultural Organizing (CIO), hadn't raised it.

Apparently, the judge was not satisfied with Righthaven's attempts to explain why this wasn't fair use. The judge, James Mahan, said both that he found the use to be fair, but also that there was simply no harm in having CIO repost the article, claiming that the market is not the same one. On top of that, the judge also pointed out that Righthaven is in an even weaker position on such cases, because it's not actually using the copyrighted content itself. In other words, if the Las Vegas Review-Journal had sued, it might have a stronger argument. In fact, the judge pointed out that Righthaven seems to be trying to abuse copyright law to stifle free speech:

"Righthaven is not using the copyright the same way the R-J used it. Righthaven is using it to support a lawsuit," Mahan said.

This type of copyright use has a chilling effect on free speech and doesn't advance a purpose of the federal Copyright Act, which is to encourage and protect creativity, Mahan said.

Can't wait to see how some of the Righthaven defenders in our comments -- the same people who have been insisting that there simply is no First Amendment issue in enforcing copyright law -- will respond to that.

Of course, the judge wasn't done there either. He also noted that Righthaven's position was made even weaker by its own failure to mitigate the problem by issuing any sort of takedown, but instead going straight to court.

Basically, this is a near complete smackdown of Righthaven on a variety of points raised by others. It's not binding on other judges, but hopefully they will pay attention. Not surprisingly, Righthaven indicated that it plans to appeal this ruling. If it does so, this one should be interesting to watch. A ruling that supports the district court here could be precedent setting, and could be a very important fair use/copyright ruling that protects some basic free speech rights. Definitely one to watch.

Filed Under: copyright, fair use, full articles
Companies: center for intercultural organizing, las vegas review journal, righthaven, stephens media

Irony? Righthaven Accuses One Of The 239 Sites It has Sued Of 'Litigation Overkill'

from the you-did-what-now? dept

It's true. With apparently no self-awareness whatsoever, Righthaven -- the highly questionable company that has sued 239 websites/companies for reposting some content from the Las Vegas Review Journal or the Denver Post -- is now claiming that one of the sites it's sued, Democratic Underground, is engaged in "litigation overkill." That's because of the EFF and Democractic Underground submitting new "key evidence," that apparently proves the copyright assignment from the newspapers in question is a "sham" and not a legitimate assignment. We've seen that charge in the past, and it hasn't stuck, so it's interesting to hear there's "new evidence" on that question. Unfortunately, for now, that evidence is hidden. Still, Righthaven isn't happy about this and is claiming the whole thing is litigation overkill. I guess it would know what litigation overkill is...

Filed Under: assignment, copyright
Companies: democratic underground, eff, righthaven

Righthaven Really Pushing Its Luck: Sues Canadian Newspaper For Misattributing Photo

from the and-still-demands-the-domain dept

For a while Righthaven and its corporate owners/partners at the Las Vegas Review Journal positioned Righthaven as being about big newspapers standing up to the grubby internet folks posting copies of newspaper articles on blogs and forums. In fact, it kept trying to get other big media operations to sign up -- with the only other paper to sign on so far being the Denver Post. Since then, Righthaven has gone a bit ballistic in suing all sorts of websites for posting a particular photo from the Denver Post (of a TSA patdown) that had gone viral. Rather than recognizing the positive benefits of the image going viral, Righthaven and the Denver Post has just seen it as a way to do a short-term money grab by suing everyone they can -- of course, without any notice or takedown requests.

In doing so, it's also started targeting much larger media organizations -- of the nature that it had been trying to get to join it earlier. We already mentioned how it had sued radio giant, Citadel Broadcasting, who one assumes has some lawyers who understand fair use and might fight back. However, it's now tackled an even more surprising target: a fellow newspaper. It's suing the Toronto Star for using the same photo.

In this case, it sounds like the Star may have just made a pretty innocent mistake: it posted the photo but attributed it to the Associated Press. While apparently the photo was not licensed by the AP, it wouldn't be that difficult to make this mistake. After all, the Denver Post is the flagship paper of MediaNews, whose chairman is Dean Singleton. Singleton is also the publisher of the Denver Post. And.... he's been the chair of the Associated Press for over a decade. So the Denver Post and MediaNews are pretty closely linked to the AP, and AP papers often contribute their content to other members, though it sounds as if that didn't happen here. So, it's not hard to see how this could just be an innocent attribution error by the Toronto Star.

You would think that basic professional courtesy in such a situation would involve an email or a phone call notifying them of this... but, that's not how Righthaven rolls. Instead, it filed its typically ridiculous lawsuit, demanding not just statutory damages, but also that the Toronto Star's URL be turned over to Righthaven. It's pretty funny every time Righthaven does this (as it does in each of its 200+ lawsuits), because there is simply no basis for demanding the domain for one minor potential infringement. Of course, as with Citadel, you'd have to imagine that the Toronto Star has lawyers who understand copyright law as well, so hopefully they'll fight this. Unfortunately, since Righthaven is perfectly happy to cave and "settle" for a few thousand (after all, that's the very basis for its business model), the Star might just pay up to make this troll go away.

Filed Under: copyright, fair use
Companies: righthaven, toronto star

Righthaven Sues Radio Giant For Hosting Caption Contest On Denver Post Photo

from the citadel's-lawyers-might-understand-fair-use dept

For the most part, Righthaven has been careful to sue individuals and smaller sites who would have a much tougher time fighting back. However, in its mad dash to sue a ton of websites for using a viral photograph of a TSA agent searching a passenger, it appears to have gone after Citadel Broadcasting, a radio giant, for running a "caption contest" on the photo. We've pointed out in the past that many users of the photo probably have pretty strong fair use claims, and (depending on the details), it seems like Citadel might as well. Plus, Citadel, being a large media company, almost certainly has lawyers it can call on who understand fair use. So this could make for an interesting legal battle if Citadel agrees to fight back.

Filed Under: copyright, fair use
Companies: citadel, righthaven

Righthaven So Busy Filing Lawsuits It Forgot To Renew Its Business License?

from the oh-yes,-and-porn dept

Amusing note in a recent Las Vegas Sun report about the latest goings on with copyright troll Righthaven: there are some indications that the company forgot to renew its business license, and that could create some problems for some of its lawsuits:

Has Righthaven been so busy filing and settling lawsuits that it forgot to renew its state business license?

Its status with the Nevada Secretary of State as of Monday was listed as "default" after the license expired Jan. 31. Net Sortie Systems LLC, Las Vegas attorney Steven Gibson's company that co-owns Righthaven, is also listed as in default.

[....]

Righthaven's "default" status will likely interest defendants in nine Righthaven lawsuits filed in Denver federal court this month over a Denver Post "TSA pat-down photo."

That's because Righthaven asserts in these lawsuits: "Righthaven is, and has been at all times relevant to this lawsuit, in good standing with the Nevada Secretary of State."

Separate from that, the report also notes that Righthaven just registered the copyright on some porn DVDs, so it may be expanding beyond copyright trolling for the newspaper business (not that lucrative), and follow the footsteps of a bunch of opportunist lawyers who have started doing mass file sharing pre-settlement shakedown letter campaigns for porn producers (without too much success so far).

Filed Under: business license
Companies: righthaven

Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model

from the read-it-all dept

Marc Randazza was kind enough to send over the amicus brief his law firm filed on behalf of the Media Bloggers' Association in response to one of Righthaven's lawsuits. You should read the whole thing (it's embedded below). I'll repeat: you should read the whole thing. It rips apart Righthaven's entire strategy and shreds it to pieces, accusing the company of champerty among other things. Here's just a snippet:

If the Las Vegas Review-Journal (hereinafter, the "LVRJ") or its parent company, Stephens Media LLC (hereinafter, "Stephens Media"), were the plaintiffs in these cases, this argument would not apply. But Righthaven's exercise in champerty seeks to make an end-run around the rule of law limiting the right to sue for copyright infringement to creators and those legitimate enterprises that make creativity possible and protectable. Nobody can seriously believe that Righthaven, which publishes nothing anywhere, has acquired the full ownership of the articles it sues upon. The assignments it secures -- only after finding "infringed" articles to sue over -- contain mysterious (and heretofore unexamined) language about a "right of reversion" which, on frank consideration, demonstrates how transparently illegitimate these "assignments" are.

Phony "assignments" are not the only venal and manipulative aspects of the Righthaven scheme. By design, Righthaven sues mostly retirees who, terrified of losing their retirement savings, generally settle their cases quickly and without discovery. But this Court should not restrain its own duty to inquire into the underlying law and facts on which both Righthaven’s claims and Righthaven's coerced settlements are based when considering its decision on damages in this case. This Court should hold serious doubts about the propriety of Righthaven bringing these suits with rights obtained from a third party that has no stated stake in this litigation or related cases. Either the LVRJ and Stephens Media are "selling lawsuits," which is impermissible under Silvers, 402 F. 3d at 884-85, or Righthaven is simply a law firm in disguise, engaged in champerty, which is impermissible in Nevada, as it is almost everywhere legal ethics and fundamental justice are a concern of the law. Schwartz v. Eliades, 113 Nev. 586, 589 (Nev. 1997); Lum v. Stinnett, 87 Nev. 402, 408 (Nev. 1971). Without revealing exactly what exclusive rights Righthaven has acquired in the works, if acquiring any at all, Righthaven essentially buys the bare right to sue for copyright infringement -- which purchase is banned by copyright law -- and uses it to sue small website operators by the hundreds. Left unchallenged, Righthaven's practices create a secondary commodities market for copyrights, or exclusive subsidiary rights in copyrights, to be used only in suing others who may have valid defenses, but cannot afford to raise them -- or engage counsel whatsoever, as is the situation in this case. This is inimical to the purpose of the Copyright Act, which was intended to protect the intellectual investments of creators, rather than creating lawsuit mills that use registered copyrights -- only after their infringement was discovered -- as a source of income, rather than a shield against others' misappropriation. See Silvers, 402 F.3d at 886.

We've seen some of the defenses to Righthaven suits raise some of these issues, but never in such a detailed manner. And it's especially interesting in this case, where the filing comes as an amicus brief, rather than lawyers for the defendant. In fact the defendant in the case, Bill Hyatt, did not reply. As we've discussed in the past, normally when that happens, the court will make a default judgment -- basically giving the plaintiff everything requested. However, they don't have to and Randazza points out that Righthaven's claims reach far beyond reasonable. Among other things, it also challenges Righthaven's ridiculous standard demand that those sued hand over their entire domain name, noting that copyright law does not allow such a remedy.

There's also a very long and worthwhile section on why the demand for $150,000 is not just ridiculous, but goes against the law. I won't post that whole thing, but here's a snippet:

The Due Process clause of the U.S. Constitution has long been a source of limitation on all forms of damages awarded in judicial proceedings. Damages beyond those actually suffered by a plaintiff, awarded as a deterrent against similar unlawful acts in the future -- known as exemplary damages -- have been tightly limited by the courts under the Due Process clause. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 (1992); State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). Because these exemplary damages may become detached from the harm actually caused to the plaintiff by defendant, these awards may fail to serve any legitimate purpose, and instead hold a "devastating potential for harm." Campbell, 538 U.S. at 417.

This due process protection is both substantive and procedural in nature. See Id. Courts analyze three figures in relation to any award of exemplary damages to determine whether any such award is grossly excessive:

1) The degree of reprehensibility of the defendant’s conduct;
2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and
3) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in similar cases.

Id. at 418; Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001); BMW of N. Am. v. Gore, 517 U.S. 559, 575 (1996). Though the Court has not yet awarded any damages in this case, the third factor, weighing the difference between awarded damages in this case and the penalties authorized in similar cases, should consider the damages sought by Righthaven in comparison to those authorized in other cases.

This analysis and scrutiny applies to the Copyright Act, just as it does to any federal law. Every act of Congress, including the enactment of the Copyright Act, is subject to due process limitations on account of the Fifth Amendment’s limits on Congress’ power. Nebbia v. N.Y., 291 U.S. 502, 510 (1934). These statutory damages allow by the Copyright Act serve the same purpose as punitive damages awarded by a jury (to punish and deter unlawful conduct) and therefore require the same level of constitutional scrutiny.

The argument here is quite interesting, since we're likely to see similar arguments made in the Jammie Thomas and Joel Tenenbaum appeals on the constitutionality of the damages awards.

Filed Under: business model, champerty, copyright, due process
Companies: righthaven

Righthaven Appeals Ruling That Said Using Partial Article Was Fair Use

from the just-can't-accept-it... dept

Back in October, we noted that Righthaven had lost its first lawsuit, as a judge declared using 8 sentences out of a 30-sentence article as "fair use." We noted it was a little strange at the time to use a fair use analysis at that stage of the legal fight, but it seemed clear that the judge wanted to get it over with rather than waste time on other issues. That ruling got Righthaven to say that it would begin to focus on the use of complete works to avoid such issues. However, it appears the legal shakedown shop has decided that it actually wants to push back on the original fair use claim. It's now appealed the ruling and wants the appeals court to say that such a use is not "fair." Of course it does. It needs a larger pool of folks to demand cash from, which is all this appeal is about.

Filed Under: copyright, fair use
Companies: righthaven