Unsealed Righthaven Agreement Has Other Judges Questioning Legitimacy Of Righthaven's Lawsuits

from the and-here-we-go... dept

While we still have a lone holdout in our comments who thinks that Righthaven's lawsuits are legit, despite the recently revealed evidence that the company holds none of the rights available under the Copyright Act, it appears that other judges dealing with Righthaven are paying attention. In a separate case from the one in which the initial agreement between Stephens Media and Righthaven was revealed, a different judge is now using that document to question Righthaven's standing to bring a lawsuit in the first place. This time, it's Judge James Mahan, who was the judge who recently slammed Righthaven in another lawsuit for going against the purpose of the Copyright Act, and declaring that a non-profit's use of an entire Stephens Media article was fair use.

This latest case involves a blog, Pahrump Life, which was sued by Righthaven for posting another Stephens Media/LVRJ article, but Judge Mahan is questioning whether or not the newly revealed agreement between the companies means Righthaven even has the standing to sue.

The contract, unsealed earlier this month at the request of the Electronic Frontier Foundation, provides that Stephens Media retains the ability to license the articles, while Righthaven only has the right to bring infringement cases. The potential problem with that arrangement is that Righthaven can't argue that it's being economically harmed by any infringement, because it lacks the ability to profit from the news articles. Litigants typically must be able to show some sort of economic damage as a prerequisite to suing.

The judge told Righthaven to make its case for why it should be allowed to bring the lawsuit, so now we'll get to see how Righthaven tries to tapdance around this issue.

Filed Under: copyright
Companies: righthaven, stephens media

Unsealed Document Reveals 'Sham' Copyright Assignments To Righthaven

from the there-go-a-bunch-of-cases... dept

In our last post, we discussed the District Court's ruling to unseal a key document in one of the Righthaven cases, in which the court slammed Righthaven's tactics. But what was in the actual document. Well, it's quite a doozy. While Righthaven and Stephens Media resisted handing it over, the EFF was finally able to get a copy of the initial agreement between Righthaven and Stephens Media. One of the key claims that some defendants had made was that Stephens was not really assigning the copyright to Righthaven, and thus the lawsuits were a sham.

The details of the agreement certainly suggest that's the case. Despite the claims that Stephens was assigning the copyrights to Righthaven and that Righthaven had full control over the copyrights and the decisions concerning who to sue, the actual agreement between the two companies tells a very, very, very different story. Stephens only assigned the rights to sue. The agreement is pretty explicit on this point:

Righhaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.

On top of that, it is revealed that Stephens Media gets 50% of all the money that Righthaven makes from these lawsuits, showing that it still has a substantial interest. Digging deeper, we learn that Righthaven doesn't even have the ability to decide who to sue without Stephens' approval:

Should Righthaven desire to sue, however, Stephens Media still controls whether suit will be brought through its right to send a "Declination Notice," upon receipt of which "Righthaven shall not take any Infringement Action with respect to the particular putative infringer set forth in any Declination Notice."... The bases upon which Stephens Media may stop a suit -- even after it has "assigned" the purported right to sue -- include whenever the person targeted "is a present or likely future valued business relationship of Stephens Media or otherwise would ... result in an adverse result to Stephens Media."

On top of that, even if it gives the okay to sue, it can later changes its mind. Stephens gets a "Right of Reversion," that lets it take back the copyright assignment "at any time." That doesn't look like a real copyright assignment at all. Oh, and if Righthaven decides on its own not to sue someone... Stephens Media gets the "copyright" back.

Keep digging: the idea that Righthaven and Stephens are two separate companies is called into question. As part of the investment, "one of the owners of Righthaven must be a 'Stephens Media Affiliate'."

This is effectively death for Righthaven's business model in these cases. Why? Because under Silvers vs. Sony Pictures, you can only assign one of the specific rights designated in Section 106 of the Copyright Act. You cannot simply assign "the right to sue," because that's a form of "selling lawsuits." Righthaven and Stevens had been insisting that there was a full copyright assignment here. But the agreement between the two companies makes it pretty clear that this is not at all true. I have to admit I'm curious to find out how the main Righthaven defender in our comments -- who argued that this whole line of legal attack was "intellectually dishonest" -- has to say about this now...

Effectively, this may end most, if not all, of Righthaven's current lawsuits on behalf of the LVRJ/Stephens Media. I feel bad for all the sites that already settled and paid up, because it appears that they probably didn't need to do so. It's not clear how this revelation may impact the suits on behalf of MediaNews and the Denver Post... but our next post will deal with some issues related to those cases.

Filed Under: copyright, copyright assignment, lawsuits
Companies: righthaven, stephens media

Judge Slams Righthaven's Legal Tactics, Unseals Document That May Undermine All Righthaven Cases

from the and-there's-that... dept

Late last week, there was a fascinating series of events in one key Righthaven lawsuit, which might lead to the collapse of most, if not all, of Righthaven's cases. If you don't recall, Righthaven is the somewhat sketchy company that was funded by Stephens Media (the publisher of the Las Vegas Review-Journal) for the purpose of effectively shaking down anyone who posted LVRJ content to the web. The way it supposedly worked was that Righthaven would scour the web, find copies of LVRJ content, and then Stephens would assign the copyright to Righthaven, so that Righthaven could sue on its own behalf. Righthaven always sued first. It never issued takedowns or made any indication that it was going to sue a particular site. Many sites settled, because Righthaven would accept a few thousand dollars as a settlement and that's cheaper than hiring a lawyer to fight the case. There were initially some questions over whether or not it was legal for Righthaven to sue when it obtained the copyright after the alleged infringement took place, but some of the early rulings in the court cases said that it was fine.

Last fall, the EFF jumped in on one of the cases -- against the website Democratic Underground -- and countersued both Righthaven and Stephens Media. Part of the EFF's argument was that the copyright assignment to Righthaven was a sham. It noted that even after the assignment, the LVRJ still showed the articles on its own site with "Copyright © Las Vegas Review-Journal."

A couple of very interesting things quickly happened. First, Righthaven and Stephens Media tried to drop the case saying it no longer wanted to sue Democratic Underground. It seemed clear that it didn't want to deal with what was coming next. Thankfully, the case is still ongoing, and recently news started spreading that the EFF, in the process of discovery, had come across a piece of evidence that would blow Righthaven out of the water... but that it couldn't reveal that evidence because it was under seal.

Well... no more. First up, the judge in the case unsealed the EFF's filing with a blistering critique against Righthaven. You really need to read the whole thing below, because it misses no opportunity to slam Righthaven, especially for Righthaven's attacks on the EFF lawyers, and a claim that the EFF was underhanded in how it filed the documents in question, because certain aspects weren't standard, but the Court points out that their only complaint appears to be that they didn't read the filing in question, and are now blaming others for that:

Righthaven and Stephens Media accuse Defendants of being underhanded by proposing a 14-day response period in the Court's Order permitting the filing under seal. There was nothing underhanded done at all. The proposed order was filed. The Court's Order also served on Righthaven and Stephens Media. Unless they confess to not reading, or ignoring, the Court's Order, their lament is not persuasive.

Righthaven and Stephens Media also accuse Defendants' counsel (who, they make a point of reminding the Court, are from out-of-town) of disingenuous gamemanship. They demand the Court issue an Order to Show Cause why Defendants should not be held in contempt for violating the Protective Order. It is this demand that is disingenuous. This Court entered the Protective Order. This Court certainly has the authority to modify its procedures as it sees fit, which it did in establishing provision for the filing of Supplemental Memorandum, because of the lateness of the disclosure by Righthaven and Stephens Media, and the potential imminent decision on the Motion to Dismiss and the Motion for Summary Judgment.

It appears the court was just warming up, because then the judge comes out with the following, beautiful, condemnation of Righthaven's legal filing practice:

The use of phrases, in the Motion to Strike, such as "underhanded," "a ruse," "blatantly ignored," "brazen attempt," "fumbling attempt," "purposefully muddle," and "Defendants' complaint reeks of hypocrisy," is a very unprofessional attempt to attack counsel rather than address the issues. There is an old adage in the law that, if the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table. It appears there is a lot of table pounding going on here.

Later, the court "confesses" that initially it was sympathetic to Righthaven's request that the new evidence not be unsealed, but then changed its mind in part due to the actions and statements of Righthaven. It really is a fantastic read, which you can see embedded below.

Of course, that's only half of this story. What was then unsealed in the document is even more damaging and may undermine most, if not all, of Righthaven's cases. However, this post is long enough, and that's a separate part of the story, so stay tuned for the very next post, in which we cover what's in the now unsealed document...

Filed Under: copyright, lawsuits
Companies: righthaven, stephens media

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

New Newspaper Business Model: Create Compelling Graphic, Wait For Others To Use It... And Then Sue

from the righthaven-way dept

As a bunch of folks have been submitting, it appears that Righthaven's latest strategic shift is to sue a bunch of sites that posted a popular illustration that was published in the Las Vegas Review-Journal. The story had to do with the so-called "Vdara death ray." The Vdara hotel on the Strip in Vegas apparently was built in such a way that at certain points, the sun would reflect off of the building in a focused manner, down towards the guest pool area, and it actually singed one guest's hair. The story is the sort of thing that goes viral quickly, and became fodder for talk shows and comedians and such. And, not surprisingly, a variety of sites used the illustration that was published in the LVRJ to explain the "death ray." So, now, of course, Righthaven is suing a whole bunch of them. Considering that this is a story about the image, and we're commenting specifically on the image itself (not just the story), it seems likely that posting this particular image here is fair use -- though I will follow Wired's lead and use the version of the image that was from the lawsuit filing, rather than the original image: While the specifics in different cases may vary, I would imagine many would have strong fair use claims as well. It's hard to see how posting this image harms the LVRJ, and it seems quite likely that it would actually draw more people to finding the original article. To be honest, I first heard about the Vdara death ray a few months back when I saw this image on another site, and then went to the original LVRJ article.

Either way, with this new effort, it suggests increasing desperation on Righthaven's part. But, you can just see the next step should these cases actually lead to cash: just keep creating "viral" type images, wait until people highlight them, and then sue, sue, sue, until the world over learns to simply avoid the LVRJ or other Righthaven associated newspapers entirely.

Filed Under: copyright, death ray, fair use, images, las vegas review-journal, vdara
Companies: righthaven, stephens media

Sherman Fredericks 'Steals'* From Me

from the where's-my-corvette dept

On Friday, we pointed out that Sherman Fredericks, the former CEO of Stephens Media and publisher of the Las Vegas Review-Journal (who lost his job last month), seemed to have a rather hypocritical view on copyright infringement, embedding an infringing Saturday Night Live video on his blog. This was the same guy who famously announced that as CEO, he had Stephens Media "grubstake" (i.e., "fund") Righthaven, the company that has sued bloggers for quoting even snippets of LVRJ articles. He was quoted as saying that it was no different than stealing a Corvette out of his driveway. So, according to Mr. Fredericks, reposting 4 paragraphs out of a 34-paragraph article -- or about 12% (as Righthaven did in at least one case) is just like stealing a Corvette. Ok.

So, it seems rather amusing to me, as pointed out by iamtheky that Federicks seemed to have absolutely no issue whatsoever with copying from my blog in trying to mock our post about Righthaven suing Matt Drudge. He quoted one sentence out of a five sentence post -- or 20%. In other words, he copied more of my post than was copied on some of the sites Righthaven is suing. So, I'm confused, Sherm, is copying stealing or not? And why is it okay for you to do it to me, but not for others to do it? And where's my damn Corvette?

On top of all that, to make it even more silly, Fredericks misrepresents what I said. I questioned why anyone would rely on a Righthaven-connected newspaper as a source ever again, for fear of getting tied up in a bogus legal fight, and he says I really mean "use without permission." No, Sherm, that's not what I meant at all, and you know it. I said as a source. I said nothing about copying anything -- though you seem to have no problem "stealing Corvettes" from me when it suits your needs, huh?

* For those who miss the obvious intent here, no, I'm not actually accusing Sherman Fredericks of "stealing" from me, because that's ridiculous, and copying is not "stealing" in any way shape, or form. I'm merely pointing out the hypocrisy of Fredericks by highlighting how he does not live up to his own confused standard.

Filed Under: copying, copyright, sherman fredericks
Companies: las vegas review journal, righthaven, stephens media

Copyright Troll Righthaven's Number One Supporter Caught Putting Infringing Material On His Own Blog

from the nice-one-sherm dept

Former Las Vegas Journal Review publisher and Stephens Media CEO Sherman Frederick was the main champion behind Righthaven. Early on he was the one who explained (in bizarre, nonsensical terms) why the LVRJ was funding and supporting Righthaven, and mocked those who pointed out the ridiculousness of his position. Part of his reasoning was that putting copyright infringing content on your website or blog is absolutely no different than stealing the Corvette out of his driveway. Even if we ignore how this is completely wrong (someone copying content doesn't remove that content from his site, and he still has the content, etc.) and grant him that premise, it seems rather odd that Frederick himself has now been caught posting infringing material to his own blog.

Now, it's probably worth mentioning that poor Mr. Frederick lost his job right after the election, but he's still a columnist for the LVRJ. One of our readers, Joseph, pointed out that one of Mr. Frederick's recent blog posts was a short one about how Saturday Night Live had done a skit about the TSA patdowns, and he embedded it in his blog post. Except, he apparently chose an infringing one from YouTube, rather than the legit version from Hulu. Oops. NBC has taken down that video, so now Frederick's blog post simply shows this: In case you can't see it, the video box says: "This video contains content from NBC Universal, who has blocked it on copyright grounds." Of course, note that NBC Universal chose to just take the content down -- something that Righthaven never gives anyone the opportunity to do. But, more importantly, I'm wondering if Mr. Frederick can explain why he stole NBC's Corvette?

Filed Under: copyright, sherman frederick, snl, youtube
Companies: nbc universal, righthaven, stephens media

Sharron Angle Settles With Righthaven

from the just-get-it-over-with dept

visual77 points to the news that Sharron Angle has settled with Righthaven. This is hardly news. Now that Angle lost her campaign for the US Senate, there was little reason to keep up the fight. I'm sure Righthaven, since it's really an arm of Stephens Media and the Las Vegas Review-Journal -- which supported Angle's candidacy at the same time it claimed she was "stealing" from them, made it quite easy for her to settle for next to nothing. The only reason the company sued in the first place was because some local press had questioned why it had sued others, but had ignored Angle. So, it was all a publicity stunt, and now that the campaign is over, I'm sure both sides found it easier to just close out the case and move on.

Separately, that same article highlights one person who's been sued who plans to fight back, no matter what the cost. Robert Zumbrunnen, who runs the popular Silicon Investor web board, doesn't seem to want to back down:

"I'm really as aggressive about this issue as I can be. But I can't, as they whine that I didn't, read all of the thousands of messages posted every day, devoting what would amount to every waking minute (only to fall further and further behind), rather than little things like operating the site as a business," Zumbrunnen said in an email. "It's obvious they don't really want a fight. Unfortunately, I rather enjoy a knock-down drag-out and they did swing first.

"They've been scratching out a living catching minnows in nets and have decided to test deeper waters with me. Or they have no clue that they're trying to intimidate not the average blogger here, but a grey-bearded guy who's been around the block more times than he can count.

"The average blogger is likely not very well-versed in the legal realities of online publishing, so my guess is they're hoping that I'm also not, and further hoping I have deep enough pockets to help line theirs but not deep enough to pay the real sharks (lawyers) to take care of these things.

"They chose poorly. There will be no settlement.

"If need be, I won't bat an eye at spending a multiple of any proposed settlement amount in the interest of defending myself and making an example of these folks, because it's very simply the right thing to do," Zumbrunnen concluded.

Silicon Investor is really quite a large forum for tech investors, and I'm actually quite surprised to find out that they apparently never bothered to register a DMCA agent. Yet another reminder, that if you run a website that allows any user participation, you really should register a DMCA agent.

Still, even without a DMCA agent, given the sheer volume of content on Silicon Investor, it seems like Zumbrunnen should be able to make a strong case that the site's operators should not face liability for postings of users, even without the DMCA's specific safe harbor. It's just an issue of properly applying liability, which Righthaven has failed to do. Hopefully some of the smart lawyers who are fighting Righthaven's awful campaign will step up and help Silicon Investor as well.

Filed Under: copyright, sharron angle
Companies: righthaven, stephens media

Las Vegas Review-Journal Endorses The Same Candidate It's Suing For 'Stealing' From Them?

from the cognitive-dissonance... dept

At the end of yet another good report by the Las Vegas Sun on a defendant in a Righthaven case fighting back (thanks to visual77 for sending this in), there's an interesting pointer to a blog post from Steve Friess, a Vegas-based writer (who has previously come out in support of Righthaven's lawsuits) noting that it appears that the Las Vegas Review-Journal really doesn't take copyright issues as seriously as it pretends in its sermons on the subject. After all, it keeps claiming that copyright infringement is no different than "stealing," and yet, Freiss notes, the LVRJ has now endorsed Sharron Angle for Senate, the same candidate that it (via Righthaven) has sued for copyright infringement:

Congrats, R-J, for proving just how seriously you take copyright theft. Copyrighting is so important that, as your top lawyer Mark Hinueber told a Society of Professional Journalists gathering, it is nearly fundamental to the very foundation of the American way of life. But, on the other hand, someone who steals from you? She ought to be a United States senator! Cognitive dissonance much?

Of course, everyone knows the reality here. The LVRJ and Righthaven are not about protecting the sanctity of copyright, or "stopping theft." It's a pure business model effort, an attempt to shakedown people for money, for sharing their content in a way that does absolutely no harm to the original work or the business of the paper. But, still, it's good to see even Righthaven supporters calling out the hypocrisy of the LVRJ claiming that it's akin to stealing on the one hand, while endorsing one of the people they sued for a position in the Senate at the same time. You don't endorse the person who stole from you for Senate. And that's the point. Angle didn't "steal" anything -- and everyone at Righthaven and the LVRJ know it.

Separately, as for the original Sun article highlighting another defense effort against Righthaven, two quick points. This is the first defense I've seen that calls out the judge's ruling in the Tenenbaum case, in which the judge called the statutory rates "constitutionally excessive," and a violation of due process. This defendant is claiming that the demands brought forth by Righthaven violate due process rights based on this. I have to say that's quite a stretch of a legal argument (and an awful lot of people fully expect that ruling in the Tenenbaum case to be overturned), but still interesting. The second point is that while a lot of the defenses against Righthaven suits seem to toss up new arguments, it appears they're starting to all focus in on a few key arguments. It will be interesting to see how the courts respond to these.

Filed Under: copyright, endorsements, las vegas review journal, sharron angle, stealing
Companies: righthaven, stephens media

EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media

from the copyright-attack dept

It's been a not-so-well-kept secret that the EFF has been actively looking for one of the sites sued by Righthaven to help defend, and it's apparently found one in the forum site, Democratic Underground, filing the response and a series of counterclaims, not just against Righthaven, but against Stephens Media (the publisher of the Las Vegas Review Journal, and the company that funded Righthaven). The Las Vegas Sun has a good overview of the counterclaims and defenses. Helping out the EFF is Andrew Bridges, who is known for challenging questionable copyright lawsuits with creative, but solid, defenses -- so some of the defenses here shouldn't be all that surprising. The key part of the countersuit is bringing Stephens Media back into the lawsuit, claiming that the two companies are so closely related, that Righthaven is not really acting as a separate company. While the lawsuit does include a bunch of similar arguments to those we've seen elsewhere, one interesting point shows that Righthaven claims to buy the copyright from Stephens Media on the stories it sues over, but the stories still show up on the LVRJ site saying "Copyright © Las Vegas Review-Journal." Thus, the EFF suggests that there's a false copyright notice involved here.

Another counterclaim notes that Stephens Media and the LVRJ have their own forums, where they specifically state that it's impossible to monitor the content in those forums, and they are not responsible for that content -- and yet, they are suing another forum owner for content posted by users in that forum. Related to that (but without much elaboration), the counterclaim suggests that LVRJ employees themselves have been reposting copyrighted material that they do not hold the rights to.

Another amusing bit is that the EFF may have caught Righthaven/Stephens Media not obeying the rules that they, themselves, set forth. In earlier discussions over what would count as "fair use," a Righthaven attorney claimed that two paragraphs from a story would be okay (which is arbitrary and has nothing to do with what the law actually says), but in this case, the EFF notes that the forum user only posted 5 sentences out of a 50 sentence article, suggesting that it was clearly fair use.

The counterclaims also make a pretty strong argument that there is minimal harm done in the type of copying done here, noting that if Righthaven actually owns the copyright, there's no evidence that it is trying to license it or to make money from it in any way other than through these lawsuits. It also points out that, the forum posting that they're suing about, increased traffic to their site rather than decreased it, and that they likely profited from advertising on the page from the visits sent by the Democratic Underground forum. As for the Democratic Underground site making money from the content, they point out that the page generated all of about $1 in ad revenue.

The response also asks for attorney's fees from Righthaven and Stephens Media. While that may be a longshot, if they get it, it certainly would put a pretty big bite into whatever money Righthaven and Stephens have made from previous lawsuits.

Filed Under: copyright
Companies: eff, righthaven, stephens media