The owner of the Las Vegas Review-Journal and its copyright enforcement partner have enlisted one of the nation’s top copyright attorneys to help defend their litigation campaign.
Dale Cendali, a partner at the law firm Kirkland & Ellis LLP in New York, has been engaged by Stephens Media LLC, owner of the Review-Journal; and copyright enforcer Righthaven LLC, court records show.
Righthaven since March 2010 has filed 265 lawsuits against website operators, bloggers and message-board users claiming material from the Review-Journal and the Denver Post has been infringed on.
Cendali, described by legal website abovethelaw.com as a "bad-ass litigatrix" and a "superstar," is known for representing the likes of Harry Potter author J.K. Rowling and The Associated Press in copyright litigation.
Chambers USA, which ranks law firms and attorneys, says Cendali is a nationally-recognized leader in intellectual property litigation.
"Cendali is revered as an 'exceptionally gifted litigator; she's tenacious, hard-hitting and really cares about her clients,"’ says a Chambers report on her.
Cendali is a graduate of Harvard Law School, where she is an adjunct professor teaching copyright and trademark litigation.
Observers say Righthaven hired her to beef up its outside counsel staff at a time when the copyright enforcement company faces several legal challenges:
• Attorneys affiliated with the Electronic Frontier Foundation (EFF), including another superstar, Harvard Law graduate Laurence Pulgram of the San Francisco office of the firm Fenwick & West LLP, convinced a federal judge to unseal the lawsuit contract between Righthaven and Stephens Media.
The EFF says this contract shows Righthaven’s lawsuits over Review-Journal material are based on sham copyright transfers and one of the federal judges hearing Righthaven cases has said it appears this contract does not give Righthaven the right to sue.
Righthaven disagrees and Cendali, in her representation, is expected to work to convince the judges to uphold Righthaven’s right to sue.
• Two federal judges have ruled against Righthaven on fair use grounds and Cendali’s expertise may be tapped in appeals of those rulings.
• Two federal judges have rejected Righthaven’s standard lawsuit demand that defendants’ website domain names be forfeited and transferred to Righthaven. It’s unknown if Righthaven will appeal those rulings – if so Cendali’s expertise may be useful.
• The lone judge in Colorado hearing all of the Righthaven cases there involving Denver Post material has expressed unhappiness with Righthaven’s business model that he described as using the courts to gain settlements from defendants "cowed by the potential costs of litigation and liability."
Cendali’s expertise in intellectual property law may come in handy in repairing relations with that judge, Senior U.S. District Judge John L. Kane, if Righthaven engages her in Colorado.
Cendali’s first appearance for Righthaven came Wednesday in its lawsuit against the operator of the Pahrump Life blog – a case in which U.S. District Judge James Mahan has said Righthaven probably lacks standing to sue under its lawsuit contract with Stephens Media.
She’s also expected to appear in Righthaven’s no-warning lawsuit against the Democratic Underground, where Pulgram and other EFF attorneys are pursuing a counterclaim against Righthaven and Stephens Media.
In an opinion piece in 2009 in the Economist magazine, Cendali made it clear she’s interested in protecting the rights of copyright holders.
"If copyright protection were reduced, then the incentives to innovate would also be reduced, undercutting the constitutional scheme. The scale, complexity and number of original works would likely drop," Cendali wrote in the post.
Eric Goldman, associate professor at California’s Santa Clara University School of Law and director of its High Tech Law Institute, said the engagement of a high-priced New York attorney by Righthaven backs up his contention Righthaven’s business model is not economically viable.
"Their model assumes lots of quick settlements, and their profit/loss projections may not have anticipated just how many -- and how hard -- defendants would fight back in court. I wouldn't be a bit surprised if Ms. Cendali's fees in this case end up being many multiples of the maximum damages that Righthaven could possibly hope to get from Pahrump Life. That's hardly a path to riches for Righthaven," Goldman said.