Righthaven Screws Up (Again); Appeal Dismissed

from the do-they-do-anything-right? dept

Righthaven has a pretty long history of totally screwing up. And in the last month or so, it's simply been not showing up at all. It seems both trends have continued. Righthaven had indicated that it was focusing much of its efforts on its appeals in the 9th Circuit appeals court, where it hoped to reverse its rather stunning string of losses. But, instead, it appears that it just didn't show up. In a short and sweet order today from the appeals court, its appeal in the case against Garry Newman was dismissed, because Righthaven "failed to comply" with an earlier court order:

Appellant has failed to comply with the court’s order filed December 14, 2011. Accordingly, this appeal is dismissed. Ninth Cir. Rule 42-1. The parties shall bear their own costs on appeal.

This order served on the district court shall act as and for the mandate of this court.

Amazingly, a big part of the reason Righthaven is even in this situation, appealing the Newman case concerning his website FacePunch.com, is that Righthaven missed earlier deadlines on the case as well. So it appealed... and now it's totally failed to comply with the earlier court order here too.

Righthaven seems to invent new and interesting ways to display incompetence almost every day.

Filed Under: appeals, facepunch, garry newman, incompetence
Companies: 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

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

UK Government Tried To Make It Harder To Appeal Three Strikes Accusations

from the noticing-a-pattern? dept

Back when the legacy entertainment industry and US ISPs announced a "voluntary" six strikes plan to deal with those accused (but not convicted) of copyright infringement online, we noted that the agreement seemed to bend over backwards to make the appeals process hard. Not only does it cost money to appeal, but your appeals options are greatly limited. For example, claiming that something is in the public domain? Yeah, that's not allowed unless it's a pre-1923 work. So, basically, even if you're using a more modern public domain work, anyone can accuse you of infringement, racking up your strikes and you can't appeal it using the most obvious appeal.

It's beginning to look like that sort of limited list is all a part of the bigger plan by such [insert random smallish number here] strikes plans. Some "leaked" documents in the UK show that the government (and take one wild guess who asked them to do this...) asked the regulators at Ofcom to limit the ability to appeal:

The Government has asked Ofcom to remove a catch-all in the appeals process which allowed appeals to be made on "any other reasonable ground."

This catch-all was previously thought necessary, as the list of grounds for appeal was "non-exhaustive" and may need updating as technology evolves. Justice for internet subscribers is now dependent on Ofcom coming back with an exhaustive list of appeal grounds in the redrafted IOC; and, keeping this list up-to-date as technology evolves (and, presumably, updating the legislation in Parliament and notifying each update to the EC).

It looks like Ofcom may have pushed back and doesn't appear supportive of such an effort, but it really does make you wonder what the industry is so afraid of. If it gets to punish people based solely on accusations, it's flat-out crazy not to allow them to appeal on any reasonable basis.

Filed Under: appeals, public domain, three strikes, uk

isoHunt Appeals Process Begins

from the not-so-simple dept

As we're still left scratching our heads over the US government's botched affidavit to seize Torrent-Finder, that includes numerous technical and legal errors -- and most importantly, does not take into account the First Amendment implications of domain name seizures -- it's worth remembering that a site that has a few similarities to Torrent-Finder, IsoHunt, is still involved in a legal fight concerning its operations.

While we keep hearing defenders of the domain name seizures claim that it's somehow "obvious" that Torrent-Finder is guilty of criminal copyright infringement, it pays to remember that IsoHunt, which is being charged with civil copyright infringement (which has a lower bar) has caused something of a stir in legal circles. The original ruling on IsoHunt broke some new ground in actually being one of the first (and perhaps most high profile case) to use the whole "Red Flag" claim to make IsoHunt guilty of contributory infringement. This is why lots of other cases now cite the district court's ruling in the IsoHunt case -- because it's really the only case that recognizes such "general knowledge" as removing DMCA safe harbors.

In other words, it's still a pretty open question how the courts will actually rule on this issue -- and yet Homeland Security and its supporters somehow think it's "obvious" that Torrent-Finder is even more guilty, despite a lack of any actual charges or a full trial? In its appeal, IsoHunt questions whether or not the injunctions placed by the judge in the district court ruling (who, it should be noted, still lets IsoHunt continue to exist, if in a modified form -- unlike the seizures) are violating the First Amendment in forcing search engines to somehow pre-censor their results, based on no factual evidence of infringement.

There certainly may be additional evidence that makes IsoHunt guilty of contributory infringement, but it's certainly not a clear cut question (though I can predict some folks in the comments will claim otherwise). However, considering that this legal battle is still being fought, it seems even more ridiculous for Homeland Security (or its recent college grad ICE agent) to declare that another search engine is somehow obviously guilty of criminal copyright infringement.

Filed Under: appeals, contributory infringement, copyright, isohunt

UK Digital Economy Bill Concession Is To Allow In A Smidgen Of Due Process, After You've Been Declared Guilty

from the guilty-until-appealed-innocent dept

As the debate continues in the UK over the Digital Economy Bill, Stephen Timms, the minister for Digital Britain, is trying to appease critics of the bill, by promising to include an appeals process for those who are accused of copyright infringement and threatened with having their internet access removed. This is mind-boggling for a few reasons. First, the admission shows that such an appeals process hadn't been in the plan already. More importantly, it shows the general thinking: this is a guilty-until-proven-innocent process. You get accused and you're guilty until you "appeal" and can prove that you were falsely accused. That doesn't seem like reasonable due process. That seems like stacking the deck in favor of copyright holders against the public.

Filed Under: appeals, copyright, digital economy bill, due process, stephen timms, uk

Insult To Injury: Mandelson Wants Those Wrongly Kicked Off The Internet To Pay To Appeal

from the guilty-by-association dept

As if Peter Mandelson's Digital Economy Bill proposal wasn't bad enough, Dave sends in yet another problem with it. While it does include a process for appealing if you are cut off for accusations (not convictions) of unauthorized file distribution or reproduction, you will have to pay up to appeal. So even if you are innocent, it will cost you money to make your case for why you shouldn't have been cut off in the first place.

Filed Under: appeals, digital economy bill, peter mandelson, uk

California Appeals Overturned Video-Game Ban To The Supreme Court

from the if-at-first-you-don't-succeed dept

Politicians in California keep trying to push through a ban on the sale of violent video games to minors -- despite the fact that every state that's passed a ban has seen it get tossed out by the courts. The latest setback for California came in February, when an appeals court upheld a lower court's ruling that the ban was unconstitutional, but the state's not finished. Its attorney general, Jerry Brown, now says he's asked the Supreme Court to hear another appeal of the original ruling. It's fairly annoying that Brown sees fit to waste even more taxpayer money (especially given the state's budget woes), but perhaps the only saving grace is that the Supreme Court might take the case and reaffirm what other courts have said all along, and finally put a stop to some of this political grandstanding.

Filed Under: appeals, california, first amendment, video games

TorrentSpy, Though Out Of Business, To Appeal Massive Fine

from the might-as-well-fight dept

Following yesterday's $110 million fine against TorrentSpy, ostensibly for copyright infringement, but really for destruction of evidence, we figured that the whole thing would drop, as the company has already shut down. But... not so fast. The company has decided to appeal, claiming that the result was a Hollywood PR stunt. Given the way the MPAA tried to claim that this ruling acted as a warning to other torrent trackers, he has a point. Still, given the destruction of evidence in this case, it may not be the model case on these issues. There are plenty of other cases, such as those against The Pirate Bay (in Sweden) and isoHunt that will be more important long term.

Filed Under: appeals, bittorrent, copyright, torrent tracking
Companies: mpaa, torrentspy

Jury Has No Problem With Rambus Patent Tricks; But Let's Wait For The Appeal

from the ain't-over-yet dept

Rambus really is a fascinating company. Almost no one denies that it pulled some sneaky tricks in making sure that they had patents that covered a DRAM standard -- but the question was whether or not those tricks were actually illegal. The EU and the FTC both decided that Rambus' actions were illegal, but the company just kept hiring lawyers and has now convinced a jury it did nothing wrong. This isn't a surprise as juries almost always side with patent holders, in part due to the great American myth that a patent is a wonderful thing not to be questioned. But, Rambus is extremely premature in announcing: "This ruling should put to rest a series of ongoing allegations Rambus has endured for many years." Hardly. There will be appeals that are going to drag this out even longer. In the meantime, we fully expect angry Rambus investors to complain about this post again as they've done in the past. After that post, someone sent me an angry email saying that I had been reported to both Rambus and the feds for slander. I'm still waiting for the lawsuit.

Filed Under: appeals, dram, patents, standards bodies
Companies: rambus