Judge strikes Righthaven warning from court record

Las Vegas copyright enforcement company Righthaven LLC on Monday sustained another setback in its litigation campaign when a federal judge in Denver struck from the record comments by Righthaven that were critical of a litigation foe's attorneys -- and that warned Righthaven followers not to infringe on its copyrights.

After Righthaven voluntarily dismissed its lawsuit against autistic North Carolina blogger Brian D. Hill, which had evolved into a public relations disaster for Righthaven and its partner the Denver Post, Senior U.S. District Judge John L. Kane issued an order finding the majority of Righthaven's notice of voluntary dismissal is "immaterial and impertinent.''

Kane ordered all of Righthaven's commentary about Hill and his attorneys and its warning to potential infringers struck from the record.

The only thing that survived after Kane's scrutiny on Monday was Righthaven's bare-bones notice of dismissal.

Kane last week criticized Righthaven's litigation tactics in the case alleging copyright infringement as he issued a rare order denying Righthaven’s motion for extra time to respond to Hill’s lengthy motion for dismissal.

"Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from defendants cowed by the potential costs of litigation and liability," Kane wrote in his order last week.

That was after attorneys for Hill, 20, denied Righthaven’s assertions that a settlement could be reached if counsel for Hill acted in good faith.

The case – over a Denver Post TSA pat-down photo -- earlier caused headaches for Righthaven and the Denver Post when Hill, with his disabilities, was mentioned in a national Associated Press story and was covered in the Denver publication Westword – and when the international group Reporters Without Borders appealed to the Denver Post to call off the lawsuit.

Hill, in responding to the lawsuit, denied he infringed on a copyright as the photo at issue can be found on multiple websites without credit to the Denver Post or any indication the photo had been taken in Denver.

Hill also embarrassed Righthaven in his response, charging that even after Righthaven learned of his disabilities (diabetes, hyperactive attention disorder and mild autism), one of its attorneys still demanded a $6,000 settlement from Hill -- an amount Hill said he couldn’t afford.

Despite the dismissal, Hill’s attorneys indicated Monday they may continue to press their assertion that Righthaven should pay their legal fees.

“We believe that the matter of attorneys’ fees is still an outstanding issue and will react accordingly,’’ said one of Hill’s lawyers, David Kerr in Fort Collins, Colo. “We are discussing the matter with Brian and evaluating our options as we speak.”

“Everyone at Santangelo Law Offices P.C. is thrilled for Brian by this development. What this means for other Righthaven cases in Colorado and elsewhere, I’ll leave that to others to speculate,” Kerr said.

The Hill case, and another case in which Righthaven sued a journalist and then quickly dropped the lawsuit, highlighted problems with Righthaven’s policy of generally suing first without talking to defendants and giving defendants a chance to remove allegedly infringing content.

In the Hill case, Righthaven said it didn’t know of his disabilities prior to filing suit and in the case against the journalist, Righthaven apparently didn’t understand it was suing a journalist over a Righthaven court exhibit that observers said would have a bullet-proof fair use defense.

Righthaven, which also sues over Las Vegas Review-Journal and sports betting material, took plenty of shots at Hill's attorneys and issued a warning to Hill and others in its Sunday filing dismissing the Hill case.

* * * *

Highlights from Righthaven's filing, all of which Kane ordered struck from the record:

"Righthaven’s notice of dismissal is in no way a concession that the defendant is immune from copyright liability. Righthaven, contrary to the declarations submitted to this court by the defendant and his mother, has attempted to amicably resolve this matter for well over a month. While a written settlement agreement was drafted and provided to opposing counsel, additional issues continue to be raised or otherwise presented that have prevented the parties from resolving the minor differences between them.

"Simply put, defendant’s counsel has clearly used the ongoing settlement negotiations as a ruse to make Righthaven believe this case was on the verge of settlement while concurrently drafting the fifty-six (56) page (dismissal) motion that was pending before this notice of dismissal was filed.

"Righthaven has acted in good faith at all times during the settlement negotiations in this case. Moreover, while not a basis for excusing him of liability, Righthaven was unaware of the defendant’s alleged medical condition prior to filing suit. In fact, defendant’s incessant use of the Internet as a means to post inflammatory statements about Righthaven and about these legal proceedings say more about his cognitive ability than one would otherwise surmise from the press statements made by his counsel.

"In short, defendant and his counsel wish to prolong these proceedings so that they can continue to use this case as a means for unjustly attacking Righthaven and its copyright enforcement efforts. Righthaven is no longer willing to engage in settlement discussions over trivial issues while the defendant and his counsel seek to extend this action for publicity purposes.

"Accordingly, Righthaven’s filing of the notice of dismissal closes this case, but in doing so it is not sanctioning the defendant’s unauthorized replication of the copyright protected material at issue.

"While the defendant may believe the notice of dismissal evidences his authorization to misappropriate copyright protected material in the course of his Internet-related conduct, he can continue to do so at his own peril. Others observing these proceedings should so likewise heed this advice because this notice of dismissal in no way exonerates any other defendant in any other Righthaven action for stealing copyright protected material and republishing such material without consent."

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  1. Sounds like Righthaven felt Hill's dismissal motion might be granted, and that would have far more implications for other suits than doing this does (not to mention more potential for economic impact on them.)

  2. boftx...
    Yup!

  3. It's a shame the original commentary couldn't be left in place, but I understand why it had to be removed. Even so, one has to wonder if grounds for an ethics complaint or other action was created by Righthaven by adding that commentary.

    Also, isn't a voluntary dismissal with prejudice? It seemed like that commentary was designed to disguise that if so.

  4. We are all thrilled that Brian's case has been dropped. This is a humiliating defeat for Righthaven. This case will impact other cases in Colorado. The judge has indicated he will not be used by Righthaven for their profiteering.

    Now lets hope Righthaven gets slapped with all of David Kerr's legal fees. He deserves every penny. Hopefully the good judge will also slap Righthaven with sanctions.

  5. Gibson probably needs to keep some of his attorney employees on a short leash. They get too emotional in their motions and it makes them look juvenile. Anyway, thanks to Mr. Kerr and his professional law firm for coming to Brian's assistance and out-lawyering these litigious bullies.

  6. He is a "prevailing party" under Nevada Law and should at least be entitled to his costs. Since this was obvious barratry he should get his fees too.