Righthaven Loses Again (Yes, Again), With Another Judge... But Immediately Refiles Lawsuit

from the definition-of-insanity dept

Ah, Righthaven. The company has lost yet again, as another Nevada judge has said that the company has no standing to bring the lawsuit. The ruling, from Judge Kent Dawson covers some similar ground to earlier dismissals from Judge Roger Hunt and Judge Philip Pro, citing the Silvers v. Sony Pictures case, which makes it clear that you can't just transfer the "right to sue" over copyrights, and highlighting the agreement between Stephens Media and Righthaven that made it clear that the "transfer" of copyrights was a sham.

Judge Dawson also addresses the "amended agreement" that Righthaven made with Stephens Media on May 9th in its attempt to get around the sham transfer, but the judge doesn't buy it (Judge Pro and Judge Hunt both expressed skepticism about this amendment), noting that it only matters what the facts were when the complaint was filed, and this attempt to change the rules later in the game is not allowed:

This amendment, however, cannot create standing because “[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint was filed.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n.4 (1992) (quoting Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 830 (1989)) (emphasis in Lujan). Although a court may allow parties to amend defective allegations of jurisdiction, it may not allow the parties to amend the facts themselves. Newman- Green, 490 U.S. at 830. As an example, a party who misstates his domicile may amend to correctly state it. This is an amendment of the allegation. However, that party is not permitted to subsequently move in order to change his domicile and amend accordingly. This would be an amendment of the jurisdictional facts, which is not allowed. See id. Here, Plaintiff and Stephens Media attempt to impermissibly amend the facts to manufacture standing. Therefore, the Court shall not consider the amended language of the SAA, but the actual assignment and language of the SAA as it existed at the time the complaint was filed.

Amazingly... Righthaven hasn't gotten the lesson yet, and isn't given up. Almost immediately after Judge Dawson dismissed the complaint, Righthaven refiled the lawsuit, claiming that with its new amendment to the strategic agreement, it now has standing to sue. It will be interesting to see how the judges react here, as they've shown a few signs of getting tired of Righthaven's attempts to continue with this copyright trolling.

Filed Under: copyright, lawsuits
Companies: righthaven

Righthaven Accused Of Avoiding Paying Legal Fees Owed

from the 30-days-to-get-away? dept

In the continuing saga of Righthaven (remember them?), the firm is trying to hold off on paying the legal fees ordered by the court in one of the many cases so far (more legal fee awards are likely on the way). The defendant, Michael Leon, and his lawyers (from the Randazza Group) have filed a motion (embedded below) that rips into Righthaven, claiming that the company is looking to avoid paying. They claim that they contacted Righthaven to arrange payment, but instead, Righthaven asked the court for a 30 day stay to avoid having to pay the $3,815 it owes.

Leon's lawyers are not pleased (and, well, that's understandable -- that's their money at stake). They're claiming that the motion to stay by Righthaven is really an attempt to avoid payment, and to use the 30 days to shift assets away to avoid having to pay, including potentially getting rid of the copyrights, which Righthaven probably doesn't hold in the first place.

If any court ever were to find that Righthaven owned the copyrights it claimed to own, an unlikely proposition in itself, then the full copyright rights would be subject to seizure in satisfaction of a judgment by a judgment creditor. More likely than not, the “rights” obtained by Righthaven are worth less than paper upon which the agreements transferring them are printed. Nonetheless, worth a million dollars or nothing at all, such a right is intangible property and, as such, may be seized to satisfy the Firm’s judgment, with its value to be determined at auction. To ensure such property is present to even be seized, though, injunctive relief is necessary. Furthermore, the relief sought is not extreme – all that is sought is an order that Righthaven may not disgorge its assets.

A stay of 30 days will enable Righthaven to liquidate money, intangible property rights in its domain name and trademarks, and its claimed copyright rights – again, to the extent Righthaven owns them at all. Depending on which version of the Strategic Alliance Agreement between Righthaven and Stephens Media LLC one looks at, Stephens Media LLC has either the immediate right to reversion, or the right to reversion with 30 day’s notice and a nominal payment. See Hoehn, Case No. 2:11-cv-00050 (Doc. # 28). Even if Righthaven does truly own the copyrights it obtained from Stephens Media LLC – an unlikely proposition based on recent precedent – it may still use the 30 day stay to resell the copyright – potentially even to Stephens Media LLC itself.

It then goes on to claim that Righthaven has a history of being somewhat shady, noting its corporate structure, as well as statements from its CEO Steve Gibson that the motion claims were either "facially incorrect" or "found to be legally unsupported." Based on that, it notes the fear that Righthaven will try to get out of paying:

In light of these circumstances, and Righthaven’s refusal to put anything regarding its alleged plans to satisfy the Firm’s judgment in writing..., the Firm has neither basis, nor reason, to trust Righthaven, and this court should join its honorable brethren in its strong skepticism of this champertous scheme.... To boot, Righthaven’s only known source of income, copyright infringement litigation, has screeched to a halt in the face of judicial scrutiny; in fact, no new lawsuits have been filed at all since May 2011.... Therefore, it stands to reason that Righthaven has no new revenue on its horizon – especially since its dozens of cases in the District of Colorado have been stayed

It goes on to rake Righthaven over the coals for its efforts to avoid paying legal fees and then concludes with this little gem:

Furthermore, if Righthaven’s CEO can provide a statement, under penalty of perjury, that it cannot scrounge up $381.50 in less than 24 hours, then the undersigned will gladly find someone willing to loan this amount to Righthaven for that purpose, and pledges to do so within 60 minutes of being presented with this sworn declaration.

Filed Under: copyright, lawsuits, legal fees, righthaven
Companies: randazza group, righthaven

Righthaven's Biggest Fan Copies Content As Part Of His Argument Against Copying Content

from the is-this-guy-clueless? dept

Last year, we wrote about how Sherman Frederick, the former publisher (since demoted to columnist) of the Las Vegas Review Journal was caught posting an infringing video on his blog. This was particularly funny, because Frederick was the key supporter of the LVRJ's "deal" with Righthaven, and regularly mocked-by-bad-analogy anyone who disagreed with him.

A few folks had sent in Frederick's latest column -- which, of course, we won't link to, since he's made it clear he doesn't want any traffic -- in which he once again defends Righthaven, despite the fact that a court basically killed off most Righthaven lawsuits due to its sham copyright transfer from LVRJ parent Stephens Media. Frederick's post is barely comprehensible, calling those who disagree with him "the unthinking blogger" and claiming that people who disagree with him "mischaracterize reality." He also seems to ignore the fact that Righthaven lost massively, and claims instead that "they're here to stay and they intend to win the battles they've started." I hope I haven't overstepped the legal boundaries of Frederick's bizarre definition of "content theft" with those quotes.

In the same article, Frederick, hilariously, suggests that everyone should have to pay to link to one of his articles. He references a decision by Radley Balko a few months ago to remove a post that linked to an LVRJ article once someone pointed out LVRJ's Righthaven association, and rather than realize how this makes Frederick and LVRJ look clueless, he claims that Balko did the right thing, and that every blogger can decide if such linking is "worth the price."

But what makes all of this extra funny is that the meat of Frederick's post is all copied content from another blog which is not properly attributed at all. Seriously. ken points us to his own analysis of Frederick's hypocrisy:

Frederick's article contains content from three paragraphs of posts from the blog GametimeIP.com. Frederick fails to even use basic netiquette for citing other sources. The parts taken are not attributed to the author except for a link and not even set in quotation marks which could leave the reader to assume those are Frederick's words and not those of GametimeIP.

It's hilarious. Yes, Frederick links to the articles, but frankly I had no idea he was actually quoting them. From the way he wrote it, it very much looks like they're Frederick's words, defending Righthaven. So, here we have Sherman Frederick, in an article decrying "copying" of content, in which he blatantly copies someone else's content, and even worse, does not properly credit it, or quote it. I also do wonder, if he "paid the price" to GametimeIP for his use of their content. After all, it's the proper way to do things, right?

Filed Under: business models, copyright, journalism, lawsuits, sherman frederick, strategy
Companies: las vegas review journal, righthaven, stephens media

The Maximalist Future: Be Sure To Pay Off Your Lawsuits Before Heading For The School Bus

from the it's-a-stretch-to-call-this-fiction dept

There's a movement underway to remove all control from your life and turn it over to others. It's not an organized movement. There's no figurehead leading the way, but between the government, the legal system, various rights holders and their offshoots and professional patent thugs, a steady removal of individual rights and personal ownership is taking place.

With rare exception, it's being done on an incremental level. The government has been increasing its control over all aspects of life, whether it's what your children eat or which products and services you can use. Various agencies called into existence by an unprecedented terrorist attack nearly a decade ago have broadened their areas of control, without fear of oversight or reprisal. The legal system is no better, endlessly entertaining frivolous lawsuits and vindictive show trials, when not playing "Home Field" for various industries and special interest groups.

Various industry groups have done the same, aided by this same government and indulged by the legal system. Between the RIAA, MPAA, ASCAP, BMI and others in the royalty-collecting field, an earnest (and dishonest) ongoing effort is being made to extract money from every single interaction with a copyrighted work, whether it's a stream, a download, an upload or simply a backup. Having discovered that suing your way to profitability is nearly impossible, these groups instead hope to bleed every service dry, drip by incremental drip.

Aggressive patent holders are doing the same thing. While there are still a number of high-dollar lawsuits filed (usually in hope of a much smaller settlement), patent litigators like Lodsys are aiming lower in hopes of a small, but perpetual income stream. All of these groups hope that the dollar amount is small enough that only a slim minority will complain or withhold payments. They make it sound so reasonable. "It's only .575%. It's so small and hardly noticeable!"

But "small" becomes a killer when everybody wants a piece of the action. Those increments all add up to real money sooner or later. But even worse, the chilling effect of overreaching legislation and thousands of litigious actions takes an incredible toll.

An amazing/terrifying piece of "speculative fiction" has surfaced over at Ftrain, although after reading this, you'd be hard pressed to agree with either of those two words in quotes. Paul Ford's piece, "Nanolaw with Daughter" (subtitled "Why Privacy Mattered") paints an eerily prescient picture of where we're likely headed. It starts with this gut-punch of a sentence:

"On a Sunday morning before her soccer practice, not long after my daughter's tenth birthday, she and I sat down on the couch with our tablets and I taught her to respond to lawsuits on her own."

Ford's world is filled with lawsuits upon lawsuits. Everyone is on the receiving end of one settlement notice or another, all piling endlessly into their inboxes. Most can easily be settled for under a dime, but like any other small thing, it adds up to real money. Even worse than the dollar amount is living your entire life as a constant target. Or in his daughter's case, even longer:

"My daughter was first sued in the womb. It was all very new then. I'd posted ultrasound scans online for friends and family. I didn't know the scans had steganographic thumbprints. A giant electronics company that made ultrasound machines acquired a speculative law firm for many tens of millions of dollars. The new legal division cut a deal with all five Big Socials to dig out contact information for anyone who'd posted pictures of their babies in-utero. It turns out the ultrasounds had no clear rights story; I didn't actually own mine. It sounds stupid now but we didn't know. The first backsuits named millions of people, and the Big Socials just caved, ripped up their privacy policies in exchange for a cut. So five months after I posted the ultrasounds, one month before my daughter was born, we received a letter (back then a paper letter) naming myself, my wife, and one or more unidentified fetal defendants in a suit. We faced, I learned, unspecified penalties for copyright violation and theft of trade secrets, and risked, it was implied, that my daughter would be born bankrupt.

But for $50.00 and processing fees the ultrasound shots I'd posted (copies attached) were mine forever, as long as I didn't republish without permission."

Ford is dead on. There is nothing about that scenario that sounds far-fetched. The only thing holding some companies back from litigious action this insane is the lack of audacity to follow through on their lawyers' fever dreams. The precedent can always be found. All that's really needed is some sympathetic court to shove the case through. Like say, I don't know, the judicial farce known commonly as "East Texas"?

It gets worse. And by "worse," I mean more and more believable.

“How many are left?” I asked.

She looked at her tablet and said: “Fifty-seven.”

“We can handle that,” I said. I walked her through the rest: Get rid of the ones without flags. Pay those a dime or less by hitting the dime button. How many now? (Only six.) We went through the six: Four copyright claims, all sub-dollar and quickly paid.

She opened the penultimate message and smiled. “Dad,” she said, “look.”

We had gone to a baseball game at the beginning of the season. They had played a song on the public address system, and she sang along without permission. They used to factor that into ticket price—they still do if you pay extra or have a season pass—but now other companies handled the followup. And here was the video from that day, one of many tens of thousands simultaneously recorded from gun scanners on the stadium roof. In the video my daughter wore a cap and a blue T-shirt. I sat beside her, my arm over her shoulder, grinning. Her voice was clear and high; the ambient roar of the audience beyond us filtered down to static."

ASCAP. BMI. RIAA. SESAC. Et al. This is what they really want. Music that is paid for multiple times with individual fees just small enough to be unoffensive.

I won't give away any more of the story but every single chilling word is worth reading, especially if you're on the other side of Techdirt's fence. If you think the laws currently in place don't cover enough ground and aren't doing enough to protect your content/product, just take a look at what can happen if you push hard enough for long enough. Everything in here isn't just easily imaginable, it's also highly possible.

And brace yourself for the last couple of sentences. They sum up the attitude of Big Content maximalists and overreaching government entities perfectly. Everything is actionable. Everything can be taken. Everything can be used against you.

Filed Under: lawsuits, predictions

US Copyright Group Breaks Its Own Record; Sues 24,583 For Allegedly Sharing Hurt Locker

from the time-to-put-the-hurt-locker-on-these-kinds-of-lawsuits dept

While US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) had some early setbacks in its attempt to sue thousands of file sharers, clearly hoping that most would just pay up rather than fight, it appears to be trying again, and going bigger each time. Even as more and more judges have been rejecting attempts to lump together thousands of individuals in such lawsuits, USCG keeps trying to go bigger. It set a record a few weeks ago, going after 23,322 IP addresses for the producers of the movie The Expendables, and now USCG has expanded its existing lawsuit for the producers of Hurt Locker to go after 24,583 BitTorrent users. Perhaps it's a last gasp effort by USCG before the party inevitably ends and judges bring such attempts to use the judicial system as a shakedown tool to an end.

Filed Under: copyright, hurt locker, lawsuits, mass filings
Companies: dunlap grubb & weaver, us copyright group

Settling Lawsuits Sometimes Makes Sense. Period.

from the just-not-worth-it dept

This is a guest post from intellectual property attorney (and computer scientist) Michael Wokasch from Quarles & Brady LLP as a rebuttal to our post about Red Hat settling with patent trolls. While snarky, we thought it made some interesting points that were worth discussing...

Red Hat's CEO recently made waves in the technology world by stating that "at some point, it's better to settle than fight these things out." The horror! The surprise! But it's not really either of those; it's just plain true.

While admitting that it can "certainly understand the basic reasoning," a recent Techdirt article basically said that Red Hat is wrong to settle... ever. In support, the article states that "in the long run, [settling] may be penny-wise and pound-foolish, because as you build up the reputation as a company who will fold... then all you do is encourage more trolling behavior."

In the words of Wikipedia, "citation needed." This is not the experience of many lawyers, companies or individuals in litigation, generally, much less patent litigation. Even anecdotal evidence suggests the opposite is true for patent infringement. There is no shortage of new patent infringement cases filed, and some of those against battle-hardened patent fighters.

Of course, there is some schoolyard movie-magic reasoning to this never-settle mentality. It's the old movie trope that the geeky kid just needs to fight the bully and, when he wins, no bully will ever pick on him again. Better yet, the bully won't pick on anyone else either! I mean, it worked in elementary school. Or at least in elementary school in the movies. Maybe it's because many of us software folks sympathize with trope or long for it to be true that so many think that a company like Red Hat can fight and beat every patent "bully" in a patent litigation rumble behind a dumpster in the Eastern District of Texas.

Even ignoring the issues of the patent troll theory, the reality of the world is much more complicated.

In real life, there is no guarantee that the geeky kid will win a fight, much less that a victory will deter other bullies. There's also no guarantee that a "win" will end bullying for everyone. True, a good bop on the nose might deter one bully, but the nature of bullies is to think that they're somehow different than everyone else. You can see this in patent litigation too.

Each patent owner has a decidedly different view of his own patent compared to previous patent owners. And there's a lot of truth to that view. The facts and circumstances of each case are different. Most cases will differ based on the perceived value of an asserted patent, perceived differences in validity (or invalidity) of the asserted patent, previous success (or lack thereof) enforcing the patent, breadth and scope of the claims of the asserted patent, importance of the technology at issue in the asserted patent or accused product, strength of the patent prosecution for the asserted patent, war chest of the parties, licensing offer, and so on. Thinking that fighting and winning in one case will deter another patent owner is wishful thinking at best.

Fighting a patent owner who has successfully survived a previous fight does not make much sense. Once a patent has survived a validity challenge either in a court or in reexam, a would-be fighter is in a much different place than a patent that has never been challenged.

In real life, litigation is a strategic calculus. Taking a patent owner to the mat is likely to cost a lot of money and there are no guarantees that you will win. There are no guarantees even if you have better defenses and a better position on invalidity. But even if you do win, what does that really mean for your company? That you have spent a lot of money, obtained a good judgment, and have saved your competitors the cost and expense of both litigation and licensing.

While the principle of never wanting to settle may sit well ideologically for some, it's a lot less clear that a company who remains responsible and accountable to its board, shareholders and employees is going to have the same warm and fuzzy feeling. Having to explain why you spent six million dollars on defending a case when you could have settled for a fraction is likely not a conversation a general counsel wants to have.

Patent litigation is not alone in putting companies in a position of having to decide between settlement or litigation. Companies have for a long time addressed similar issues in product liability, discrimination, and personal injury cases. Company managers often start with the "never going to settle" this case to teach everyone a lesson, only to realize that the rational thing to do is to make it go away quietly.

This is not to say it does not make sense to litigate. Indeed, there are many times when litigation does make sense. But the reason is not to send a message. There's much more strategery involved than simply whipping out principle.

Of course, stating the above is not in my best interest. If every company went to battle over every patent infringement claim no matter the strength of case or cost of settlement, it would be full employment for patent attorneys and litigators.

Filed Under: lawsuits, patents, settling

Dispute Over Nude Nuns Copyright Leads To Second Firm Copying First Firm's Lawsuit

from the copyright-gone-mad dept

We recently wrote about the lawsuit that was filed against 5,865 alleged downloaders of the B-movie Nude Nuns With Big Guns by Camelot Distribution Group. In many ways, the lawsuit seemed like many of the other mass infringer shakedown lawsuits... but there was one element that made it interesting. A second company, Incentive Capital, said that Camelot didn't hold the copyright in question. Basically, Camelot had borrowed money from Incentive in order to purchase the copyright to the movie in question, but failed to payback the loan and Incentive had foreclosed on the film.

Camelot continued to push forward with the lawsuit and, in an amusing twist, Incentive Capital has filed an almost identical lawsuit against the exact same 5,865 alleged downloaders: I wonder if Camelot would file a copyright infringement lawsuit against Incentive for copying its lawsuit (though, (1) I doubt that Camelot registered its lawsuit and (2) there would be reasonable claims that much of the copied parts were not subject to copyright). Still, the whole thing is kind of amusing (assuming you're not one of the 5,865 being sued twice).

Filed Under: copyright, lawsuits
Companies: camelot distribution group, incentive capital

Guy Sues Google Because His Past Lawsuits Show Up In Google Results

from the yeah,-that'll-work dept

Eric Goldman points us to a pro se case filed by a guy, Paul Hynard, who is apparently quite upset that searches on his name point to previous lawsuits that he was involved in that he doesn't want public. Of course, as with many pro se lawsuits, many of the concepts in the filing (embedded below) are a bit on the nutty side. However, as Goldman notes, this is the sort of thing that will become a lot more common if Europeans succeed in passing laws that grant a right to be forgotten. Do we really want to be dealing with regular lawsuits like this?

Filed Under: lawsuits, search
Companies: google

Even As Copyright Trolls' Legal Strategy Appears To Be Failing, The Shakedowns Are Working

from the profitability... dept

We've noted that most of the judges handling the various mass infringement file sharing cases have been tossing most of the defendants, questioning the legal basis for lumping so many into a single lawsuit. And, yet, even with such failures, it turns out that the business is quite profitable (for now). Two separate articles about two of the lawyers in this game (and it is a game, rather than any sort of serious legal pursuit) demonstrate that.

The first, as highlighted by TorrentFreak is a profile about Evan Stone, the junior lawyer who has had a particularly hard time getting anyone in the legal community to take his cases seriously. This is the same Evan Stone who may be facing sanctions for his ethically dubious action of sending subpoenas to ISPs and getting names of account holders despite a court not allowing those subpoenas. Stone then responded with a ridiculously petulant filing to the court, and has since dropped most, if not all, of his cases -- though, he claims some indie film producers have signed up and he's gearing up to move forward. I would suggest that if any of those indie film producers read this, they might want to seek out a more competent lawyer who doesn't resort to insulting the court after he's called on a potentially serious ethics violation.

That said, it's not difficult to understand why he wanted to send out the subpoenas and get the names. Even though all of his cases have ended in failure, the article notes that approximately 40% of those who receive the threat letters settle... and Stone gets to keep 45% of the settlement money. That adds up. Even if you assume that the 40% settlement rate is inflated (it comes from Stone himself), he's making money on these questionable legal pursuits. All of his talk about "hating" file sharers in the article is for show. He's profiting from scaring people who don't want to go to court into paying up.

Similarly, Ars Technica has an article highlighting the voicemails left by another lawyer playing this game, John Steele, for the people he's sent legal threat letters to. And, of course, it becomes quite clear that the entire point of this strategy is to get paid. The voicemails repeatedly ask about the settlement or refer to the settlement and point out how it would be easier and cheaper to settle than to fight this in court. Amusingly, they leave out all of the difficulty Steele has had in getting a court to actually move forward with these lawsuits. Still, money is being made:

One can get a sense of how many settlements are being racked up by looking through Steele's various court dockets. Occasionally, he will voluntarily dismiss a batch of IP addresses from a suit without apparent reason; these appear to be people who have settled. In his Future Blue v. Does 1-300 lawsuit, for instance, Steele last week withdrew his claims against 15 IP addresses. If each one settled at $2,900 apiece, that's $43,500--not King Midas money, but hardly chump change, either.

Of course, this is also why these lawyers are getting more and more annoyed about the courts potentially cutting them off from such an easy cash generating venture (shaking down people is so much fun). In that profile on Stone, he claims that he may have figured out a way to get around having to actually go to court first:

He's hard at work on his latest strategy, one that'll help him fly a little below the radar on his pirate hunt: a subpoena provision in the Copyright Act that he's hoping will let him track down names and addresses without having to sue anyone first.

I imagine that would be news to the RIAA who already tried that and got shot down handily in court in the famous RIAA v. Verizon case. Of course, given his other mistakes, I guess it's no surprise that Stone apparently is unfamiliar with the case law on the matter.

Filed Under: copyright, evan stone, john steele, lawsuits