New attacks launched on Righthaven litigation campaign

The copyright infringement lawsuit campaign of Righthaven LLC of Las Vegas faces new attacks by three defendants.

Since March 2010, Righthaven has filed 274 federal lawsuits alleging online copyright infringement of material from the Las Vegas Review-Journal and the Denver Post.

Righthaven’s no-warning lawsuit campaign has been marred by three fair use losses since October, as well as rulings last month throwing out four lawsuits on a standing issue and a judge’s threat of sanctions against Righthaven over alleged misrepresentations.

Five federal judges in Las Vegas, Reno and Denver have either dismissed — or are threatening to dismiss — Righthaven lawsuits for lack of standing.

Righthaven says its suits are needed to combat widespread misappropriation of news material by website operators, bloggers and message-board posters. But defense attorneys and critics say its suits are based on “sham” copyright assignments that don’t actually give it the right to sue.

Nevada Judges Edward Reed Jr., Robert Jones, Howard McKibben, Lloyd George, Gloria Navarro and Kent Dawson haven’t yet indicated if they’re inclined to dismiss the Righthaven cases they are handling based on the standing issue.

Defendants in some of the cases assigned to those judges have filed new or updated motions to dismiss.

One was filed Thursday by attorneys for the Virginia Citizens Defense League, who asked Navarro to dismiss the suit pending against it based on the precedent set by earlier decisions on standing by Judges Roger Hunt and Philip Pro. Hunt and Pro found Righthaven doesn’t have full ownership of the copyrights at issue, so it can’t sue over them.

In their filing, the Virginia Citizens Defense League attorneys also threw in another argument against Righthaven’s lack of standing for a federal lawsuit over the posting of an R-J story on the Virginia group’s website.

“Righthaven also lacks standing under Article III” of the U.S. Constitution, the Virginia Citizens Defense League attorneys wrote in their filing.

“The central element necessary for Article III standing is...an ‘injury in fact’ — an actual or imminent harm,” their filing said.

They said Righthaven’s copyright lawsuit contract with Review-Journal owner Stephens Media LLC “makes it abundantly clear that Righthaven suffered no injury or harm from the alleged infringement.”

“Righthaven alleged that it was injured because of infringements of its exclusive rights to reproduce, to prepare derivative works, to distribute copies and to publicly display the work (story),” the filing said. “But it did not hold any of those exclusive rights. They were held by Stephens Media. Thus, any infringements on those rights could not possibly harm or injure Righthaven.”

The Virginia group is represented in the litigation by Fairfax, Va., attorneys Richard Gardiner and Dan Peterson; and by Reno attorney Robert DeLong.

Also responding to a Righthaven lawsuit last week was Johannes Garrido in San Ramon, Calif. Righthaven says he has a website called extremedui.net, where it says a Review-Journal story was posted without authorization.

Garrido, responding without an attorney, wrote: “This matter could have been resolved if Righthaven would have contacted us first and let us know their belief of a copyright violation and we would have responded accordingly.”

“Defendant denies any allegations of intent of copyright infringement,” he added.

In addition, a motion for dismissal was filed last week by attorneys for Garry Newman, whose case is being handled by Judge James Mahan.

Mahan has already threatened to dismiss Righthaven cases on the standing issue and, in the key Pahrump Life case, has set new hearing dates for this month.

Newman’s attorneys said in their motion for dismissal that Newman lives in England and doesn’t target his website to Nevadans, so the Nevada court doesn’t have jurisdiction over him.

“Prior to receiving notice of the complaint, Newman had never heard of Righthaven or the Las Vegas Review–Journal. As the website’s readership is worldwide and not focused on or limited to any particular geographic region, Newman disagrees with Righthaven’s contention that reproduction of the article on the website was of specific interest to Nevada residents,” their filing said.

Righthaven hasn’t yet responded to this assertion, but in the past it has sued and settled with defendants in Canada and Europe.

Righthaven’s suit charged that a Review-Journal story about the Vdara hotel “death ray” had been posted on Newman’s www.facepunch.com website without authorization.

Newman’s attorneys responded that the story was posted by user “Wii60” of the site, which is a forum for online game enthusiasts.

“Newman does not direct or create content that third parties, such as Wii60, post on the website,” his response said.

“Prior to filing the complaint, Righthaven never sent a cease & desist letter requesting removal of the alleged unauthorized reproduction. Immediately upon learning of Righthaven’s allegations, Newman...disabled the thread to the posting,” the response said.

Newman’s attorneys noted Righthaven’s standing to sue over Review-Journal material has been rejected by Judges Hunt and Pro.

“Righthaven’s motivation in filing suit against Newman is suspect. As Judge Hunt found in dismissing Righthaven’s complaint against Democratic Underground, Righthaven’s only right under the (Stephens Media/Righthaven lawsuit contract) is to ‘bring and profit from copyright infringement actions,’” the filing said.

“Righthaven cannot claim with a straight face that it has been harmed. Righthaven acknowledges that the website attributed the Las Vegas Review-Journal as the original source of the article for the entire time in which the article appeared on the website,” the filing said.

“Even if Righthaven were deemed the prevailing party, it would not be entitled to recover either statutory damages or attorneys’ fees against Newman, since copyright registration for the article was not obtained until after the alleged infringement,” Newman’s attorneys argued, citing case law.

“These facts indicate that Righthaven’s true motivation is to target and extract settlements from specific defendants, like Newman, who will have difficulty defending against litigation (because of cost or distance or, in this case, both),” their filing said.

Newman is represented in the suit by attorneys with the law firms Bone McAllester Norton PLLC in Nashville and and Brownstein Hyatt Farber Schreck LLC in Las Vegas.

In another development, Righthaven will have to deal with South Carolina attorney Todd Kincannon and his group, Citizens Against Litigation Abuse Inc., in the Pahrump Life case in Las Vegas.

Mahan has granted the group’s request to appear as a friend of the court, where it will argue Righthaven has been practicing law without a license.

“The court has reviewed the proposed brief and agrees that it may be useful to the court in ruling on the pending order to show cause why the case should not be dismissed for lack of standing,” Mahan wrote in a June 29 order.

Kincannon is already litigating against Righthaven in three courts in South Carolina.

In a petition filed with the South Carolina Supreme Court this week, Kincannon charged that Righthaven’s lawsuits over R-J and Denver Post material are part of a business model that “is blatantly the unauthorized practice of law, in South Carolina and everywhere else.”

He says that’s because Righthaven, which is not a law firm, shares lawsuit revenue with its media clients.

Kincannon complained that a non-law firm entity in the business of seeking lawsuit assignments, pursuing litigation in its own name and splitting the proceeds with the assignor “commits a fraud on the court and the unauthorized practice of law.”

Righthaven has not yet responded to these assertions.

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  1. WOW! Righthaven is being pounded into submission and I'm glad! This outfit is nothing less than an egregious ambulance chaser which gives other ambulance chasers a bad name! These phony lawsuits tie up our courts, delay righteous litigation and waste tax dollars. Put these cretins out of business!

  2. mred

    Yes and I am offended the RJ calls themselves a conservative newspaper. What the RJ is doing goes against so many conservative principles such as limited government and self reliance. The RJ along with Righthaven want strict government control over the Internet and regulate it with an iron fist in the name of "IP Protection". Since when does a conservative believe it is the governments responsibility to "protect" them or their business models?

    No the RJ is not a conservative newspaper. Any conservatism they may espouse is like inscribing the Declaration of Independence on a pile of cow dung. They may talk conservatism but it is only talk to sell newspapers.

  3. Interesting part is yesterday the RJ had a whole story, written about a Yahoo Story that Las Vegas was not on the list Nationwide as the top worst places to buy homes in the next five years.

    They did say the information came from the Yahoo list but did not even put a link to the Yahoo news page so that you could read the whole story.

    They wrote a story based on someone else's work yet no link. That was nice of them.

  4. "No the RJ is not a conservative newspaper."

    no sir, but they are fixing to meet conservative values ..... lol

    http://www.thekincannonfirm.com/todd

  5. vegaslee: That's a good point, but Yahoo, then the RJ rewrote stats that came from other enterprises, Case-Shiller, etc. It was all public information so a link probably wasn't required, though I think the paper should have done it, if for no other reason and PR while it's in this mess, and it is a mess. FYI, here's the link: http://finance.yahoo.com/blogs/daily-tic....
    Jerry Fink: "These phony lawsuits tie up our courts, delay righteous litigation and waste tax dollars." I've thought for some time that a solid news story would be about just that: How much are these litigations costing the taxpaper, whether in Nevada or elsewhere? There are many in the courts who have to spend time on these filings whether or not the trial's been held. The number would be interesting.

  6. More copyright and IP owners are demanding we tax payers prop up their failing business models. It is up to industries to adapt to the changing marketplace not use the levers of government to force consumers to comply with their preferred business practices.

  7. I do not approve of Righthaven's actions but I am sad to see the valuable protection of the Copyright law dragged through the mud because of them.

    Copyright is a valuable tool. Without that protection, there's no incentive to create intellectual property.

    I keep seeing these articles reference "no warning lawsuits." There isn't one line in the federal code or in the FRCP that requires any warning before filing a Copyright action. It is not a factor. I also keep seeing references to non-profits being sued or people who weren't trying to make money being sued as if that were somehow a factor in whether or not Copyright was infringed. It isn't. It might impact damages but not the actual finding of Copyright violation.

    Don't throw the baby out with the bathwater. Righthaven is a company that in my Constitutionally - protected opinion is lower than Whale crap. But that doesn't mean the notion that we need Copyright protection can't survive.

  8. I have to agree in large part Scott. The only thing I would mention is that a take-down notice is required when a site has a proper DMCA registration. But as others have pointed out, that mainly protects the site operator against actions caused by third parties, of which the case against Garry Newman is an example.

    I looked at the extremedui.net site and found the article in question. (It is easy to find, just search for "review journal" on the site.)

    In my (non-attorney) opinion that is a clear infringement and it is only the issue of standing that would prevent Righthaven from prevailing.

    I also think Judge Pro was wrong to rule on the issue of "fair use" when there was no other party with standing remaining in the suit after he had dismissed Righthaven on standing. This is distinct from Judge Hunt's ruling in that even after a similar dismissal Stephens Media was still named as a participant thanks to a counter-claim by Democratic Underground, and Stephens Media clearly has standing thanks to Hunt's ruling.

    This entire mess seems to have been created by Gibson. His plan to allow outfits such as Stephens Media to remain in the background and avoid being put in a negative light has backfired in a spectacular way and possibly stripped them of the very protection they sought to enforce.

  9. Scott

    A take-down letter may not be required by the law but what Righthaven has shown is without the paper trail it is very difficult to prove that the infringement was willful. Copyright owners have a much better case when they send a take-down letter. If the person refuses then the copyright owner can take it further with clean hands because they at least tried to mitigate the situation before litigating.

    Righthaven says that sending take-down letters are expensive but as we are seeing it is far more expensive not to do so.

  10. Scott- You are 100% correct that take down notices are not required. Also in the fact that non-profit status or lack of intent to profit are not factors in whether copyright has been infringed. HOWEVER, in these cases the lack of take down notices IS additional evidence that Righthaven exists solely to buy copyrights and sue infringers in order to make money...they have no interest in actually preventing or stopping the particular infringement...and that IS illegal.

    In addition, non-profit status and lack of intent to profit from a 'copyright infringement' IS relevant when claiming the absolute defense of Fair Use. So while these factors do not determine whether infringement occurred, they certainly do significantly determine whether the copyright holder is entitled to any remedy. While it can be confusing that one has to be found to infringe a copyright first before claiming the absolute defense of Fair Use, that's the way it is.

    Indeed copyrights are very important...VERY. Though one is faced with a tough decision as to whether they are more important than prohibiting using the federal courts as a tool of extortion.....well...maybe not so tough a decision actually. And yes, Righthaven is to blame for any dilution of the power of the copyright we are seeing.

    Boftx- As i mentioned in one of my comments on another posting, Pro issued his Fair Use ruling based on a Motion for Summary Judgment that was made and answered completely by both parties. This is not the usual situation since most motions to dismiss are made and heard before the case has progressed to summary judgment motions. But, I don't see any error on his part and since the other judges are not bound by his decisions, like a court of appeals decision, it holds no authority in any other case., However it does still hold some importance to other defendants and even perhaps other judges in forming their arguments and opinions.

  11. LawMed,

    Thank you for addressing that. It would appear that we are in general agreement but on this particular issue we must agree to disagree. :)

    Judge Hunt dismissed Democratic Underground's request for summary judgement *with regard to Righthaven* on infringement as moot after dismissing Righthaven from the action for lack of standing. I think Judge Pro should have done the same.

    Judge Pro's ruling may not have hold authority in other cases, but it *will* be referred to nonetheless.

    Given that Title 17 specifically addresses the copying of works in their entirety in a face-to-face educational environment I would argue that such copying in a wide open internet environment is a much stronger factor that mitigates against fair use than either Judge Mahan or Judge Pro gives credit for.

    As an aside, I would wager that you and I would have an enjoyable afternoon debating this over BBQ (wood fired, of course,) Scotch and good cigars. :)

  12. In the case of Lenz vs Universal in 2008 a Federal District Court ruled that copyright holders must at least consider fair use before issuing take-down letters.

    Universal enacted a blanket policy with Prince that no Prince song could be posted in ANY context on the Internet regardless of fair use.

    A take-down letter was sent to Stephanie Lenz who had video taped her young child dancing to a very inaudible version of a Prince Song. Universal sent a take-down letter to Youtube who took down the video prompting Lenz, along with the EFF, to sue Universal for abusing the DMCA and Lenz prevailed in court.

    http://en.wikipedia.org/wiki/Lenz_v._Uni....

    "The court held that copyright owners must consider fair use before issuing DMCA takedown notices. Thus, the court denied Universal's motion to dismiss Lenz's claims, finding Lenz's allegation that Universal indiscriminately removed Prince-related content plausible at an early stage in the case. Universal's concerns over the burden of considering fair use were deemed overstated, as mere good faith consideration of fair use, not necessarily an in-depth investigation, is sufficient defense against misrepresentation. The court also explained that liability for misrepresentation is crucial in preventing abuse of the DMCA as a means to stifle controversial speech."

    The video was reinstated on YouTube. This case has become a symbol of obsessive and over-reaching copyright protection.

  13. boftx indeed we would have such an afternoon. And by no means am I an expert on copyright law as interpreted by US courts to date! One good thing from all of this is learning an area of the law in some detail that might otherwise not have presented itself in any detail.

    I have not checked Hunt's determination of the summary judgment motion as moot, but I would bet that that motion may not have been ready for hearing and/or as well plead so as to provide the court with enough information to rule decisively on the issue as did the Pro motion. Will get back to ya! In any event it IS the minority of cases where this would have been ruled on (instead of being found moot) while also dismissing for standing, that is sure. But I am unable to come up with any rule actually preventing it in light of the fact that the dismissal for standing and the summary judgment were consistent in the party they found against. Indeed it seems and issue would exist had he ruled on summary judgment in favor of righthaven and dismissed the case because they had lack of standing..