Righthaven's Big Appeal Kicks Off With About As Much Success As Its District Court Cases

from the not-looking-good dept

These days, with the likes of Prenda Law and Charles Carreon, it feels like we've all forgotten last year's favorite legal punching bag: Righthaven. While its comical failures had resulted in at least one of its major appeals going away, the company somehow convinced another lawyer to represent it, and he actually showed up in the 9th Circuit appeals court yesterday to try to revive Righthaven's chances in two of its key cases: the DiBiase case and the Hoehn case.

Not surprisingly, Righthaven's new lawyer, Erik Syverson, is discovering he has an uphill battle ahead of him.

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

If you don't recall, the key issue was that Righthaven never really had any control over the copyright in the cases. They involved content from the Las Vegas Review-Journal, but the agreement between Righthaven and Stevens Media (the owner of the LVRJ) made it clear that the LVRJ had full say in things and could take back the copyright at any time. In effect, the only thing really transferred to Righthaven was the "bare right to sue" and you can't do that, because such a "right" is not a separate right of copyright. You can only transfer one of the actual listed copyright rights (e.g., the right to reproduce, distribute or perform) and with that comes the ability to sue. The Silvers case referred to above is Silvers v. Sony Pictures which makes that point clear.

That said, as Joe Mullin reports in the link above, the appeals court justices seemed somewhat less bought into the idea, raised in the Hoehn case, that the use of the LVRJ material was fair use. That's unfortunate. It was a good ruling that found that even when you repost a full article it can be fair use. The argument was mainly that when Wayne Hoehn posted it, it was not for the same purpose or in any way competitive with Righthaven (who merely wanted it to sue). But the court wasn't as receptive to that argument:

First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

Hopefully the panel reconsiders before issuing its ruling. The way Hoehn used it was not the same way that Righthaven or the LVRJ were using it -- and it's that aspect that was transformative. Still, it won't surprise me if that argument fails, but it will be unfortunate. Either way, if Righthaven actually "wins" on that point, it won't much matter for the company, considering its likely to lose on whether or not it even had standing to sue in the first place. However, for those of us concerned about fair use, and how widely it can be applied, this second issue may be a lot more important. Having a strong fair use ruling on the books concerning the reposting of full content (in a particular context) would be a good thing to have, though it sounds unlikely.

Filed Under: appeals, copyright, fair use, hoehn, right to sue, righthaven, standing, thomas dibiase
Companies: righthaven

Righthaven Files Emergency Motion To Try To Keep Its Assets

from the that's-not-going-to-work dept

Looks like Righthaven has finally reappeared... filing an "emergency motion" in the 9th Circuit appeals court trying to prevent Marc Randazza from continuing to move forward in the Hoehn case, where (as you may have heard) Righthaven has been ordered to hand over various assets (and the company's righthaven.com domain is being auctioned off). Randazza has filed a response (embedded below) in which he goes back to bringing up Herman Melville's classic story Bartleby the Scrivener, in which Bartleby never does any work because "I would prefer not to." If that sounds familiar, it may be because Randazza used that line the last time Righthaven filed for an "emergency" stay in the same 9th Circuit Appeals Court... in the same case. That time the court rejected it, and as Randazza explains, there are tons of reasons to reject it again. You can read the entire filing explaining all the reasons that Righthaven's emergency filing makes no sense -- especially since it failed to bother to oppose many of the things it's now fighting when they were happening in the district court. However, the key reason is simply procedural:

While it would be far more satisfying to see this motion defeated on substantive grounds, it fails cleanly as a matter of procedure. Rule 27-3(a) requires the movant’s counsel to make "every practicable effort" to notify opposing counsel before filing an Emergency Motion. Righthaven’s counsel failed to do so, and misled this Court about his efforts to do so. Hoehn’s counsel first learned of the Motion by receiving it through the Court’s cm/ecf system .... Only after receiving the Motion did Hoehn's counsel receive a fax from Righthaven's counsel notifying them of its intent to file this Motion

I used to think that Righthaven might make a useful law school case study some day, but now I'm wondering if there shouldn't be an entire class studying Righthaven in order to teach lawyers exactly what not to do in handling cases.

Filed Under: hoehn, marc randazza, righthaven
Companies: righthaven

Righthaven.com Domain Auction Has Begun

from the place-your-bids dept

As promised last week, it appears that the auction of the righthaven.com has begun over at SnapNames. The auction will apparently run until January 6th at 12:15 PT. So if you were planning to take up a collection to buy it for yourself, start counting those pennies. There have already been a few bids, and at the time I'm writing this, they're asking a bit over $1,000.

Filed Under: assets, auction, domain, hoehn, righthaven, righthaven.com
Companies: righthaven

US Marshal Service Told To Go After Righthaven's Assets

from the is-it-over-yet? dept

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

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

Yet Another Judge Rejects Yet Another Righthaven Case

from the and-another-one-down dept

Another day and another loss for Righthaven, as yet another judge (this makes four) says that Righthaven has no standing to bring the suit, because it did not technically hold the copyright, since its agreement with Stephens Media only really transferred the right to sue, rather than any of the listed rights under the Copyright Act. This time it's judge James Mahan, adding to judges Kent Dawson, Roger Hunt and Philip Pro, who have all come to the same conclusion. Mahan, of course, got some attention earlier this year when he was the first to rule in a Righthaven case that reposting a full article could still be fair use. Mahan also rejected Righthaven's attempt to claim that its newly amended agreement with Stephens Media should allow the case to continue, noting that the company wants to change the facts of the case in doing so.

That said, Mahan refused to make the dismissal of the case "with prejudice," meaning that Righthaven can (and probably will) refile the lawsuit, using the newly amended agreement to claim standing. Until there are conclusive rulings on that amended agreement, we may have to go through this whole process a few more times before some judge finally tells Righthaven to give up.

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

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 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