Commentary: Righthaven defendant tries a fresh approach

One of the Righthaven LLC lawsuit defendants is posing some compelling, back-to-basics questions about his case.

Defendants in Righthaven’s 265 lawsuits typically complain about getting sued without warning and heap criticism on Las Vegas-based Righthaven, which sues over copyrights it claims to own covering material from the Las Vegas Review-Journal and the Denver Post.

Those that fight back in court frequently do so with they or their attorneys using often-arcane legal arguments about "jurisdiction," "standing," "fair use" "implied license," "domain name transfers" and the Digital Millennium Copyright Act.

Having seen our fair share of those wordy legal briefs, and Righthaven’s lengthy rebuttals, we were surprised to see the refreshing approach Righthaven defendant Rod Brooks is taking.

Brooks is a 911 emergency dispatcher and communications trainer in Victoria, British Columbia.

He was sued in September over allegations a Review-Journal story about the 911 call related to the police shooting of Erik Scott was posted on his website iama911operator.org.

Brooks says he operates in a noncommercial manner within the fair use boundaries of copyright law – though there is some advertising on his page.

Court records show that in a January letter to Righthaven, concerning discovery in the lawsuit, Brooks said he didn’t have the resources to hire an attorney in Nevada and that "nor am I presently inclined to seek the assistance of organizations railing against you."

Nevertheless, Brooks told Righthaven that during discovery he’d be seeking some fundamental information – including information that Righthaven likely wouldn’t want to see become part of the court record.

This information includes:

-- A detailed computation of damages claimed against Brooks.

(Righthaven would say that with statutory damages, it doesn’t need to prove economic harm. Recent case law, however, says statutory damages that are clearly excessive in relation to actual damages are unconstitutional as they violate due process rights).

Brooks also said that during discovery in his lawsuit, he’d demand Righthaven "disclose the names of the persons and the processes involved in determining my specific infringement, gaining subsequent copyright from the original copyright holder and the decisions involved in bringing suit against me."

Righthaven, which calls itself a technology company, would likely say that’s all proprietary information.

Brooks also wants executives at the Review-Journal and its owner Stephens Media LLC to "disclose any history and practice in bringing suit against copyright violators."

It seems like a fair question, to which Stephens Media would likely reply "takedown notices have been ineffective" in deterring copyright infringements.

Brooks also would like the "Newspaper Association of America to provide an expert opinion on industry best practices in reconciling matters of copyright infringement."

Another good question, to which the response would likely be something like: "We haven’t figured it out yet in the Internet age."

Brooks also would like "The Las Vegas Sun, a comparable firm in the Nevada newspaper market, to provide an opinion on the financial impact of a similar infringement."

Another good question. I can't speak for our editors and publisher, but it’s doubtful the Sun would get dragged into a case we are covering.

Brooks may be better off posing that question to, say, the Seattle Times, the Oregonian and the Arizona Republic.

Keep in mind that Brooks, as he asks these questions, is doing so from the point of view of someone who believes his website is performing a public service and in no way has hurt the Review-Journal or Righthaven.

"I am a 911 operator. I started the website with the encouragement of co-workers who believe, as I do, that sharing news and views is a valuable way to promote our profession. It provides no financial gain," Brooks said in his letter to Righthaven.

If Brooks were able to get answers to his questions, that information may shape the debate about Righthaven and influence the case law Righthaven is creating.

***

Another of Righthaven’s Colorado lawsuit defendants is fighting back.

Tripso Inc. and Charles Leocha, operator of the consumertraveler.com website, say the Righthaven suit against them over a Denver Post TSA pat-down photo should be dismissed because the Colorado court lacks jurisdiction over them.

In court papers, the defendants say they have nothing to do with Colorado and found the photo during a Google image search. They say the photo appeared six to eight times on the first few pages of a Google search for a TSA pat-down photo – and there was no indication the image was protected by copyright, that it came from the Denver Post or that it was even taken in Denver.

"To the best of Mr. Leocha’s knowledge, he innocently stumbled upon an unattributed copy of the photo on a site apart from the Denver Post," says the filing by Denver attorney Andrew Contiguglia.

Contiguglia also represents Righthaven defendant William Sumner, who has a website called DailyKix.com.

***

Current and former Righthaven defendants continue to complain about Righthaven and its tactics.

Denise Nichols, a hospitalized retired military nurse, is out with a new post involving herself and two other Righthaven defendants, veterans advocate Michael Leon and decorated Vietnam veteran Wayne Hoehn.

"Righthaven lawsuits against veterans, retirees and disabled persons -- who are particularly unable to fight this situation inflicted upon them -- aim for people who are isolated and unable to fight back," Nichols charged in her post.

Righthaven, however, has denied targeting classes of people and has said it doesn’t investigate to see whether people are disabled or ill before filing suit.

Another defendant complaining about the company is Pam Spaulding who says the cost of settling with Righthaven effectively bankrupted her website Pam’s House Blend.

***

Righthaven observer Eric Goldman says Righthaven may be performing a public good as its two fair use defeats will help shape copyright law.

Goldman, though, doubts Righthaven will be around to celebrate this public good as he expects judges to require Righthaven to pay some hefty legal costs incurred by prevailing defendants and that would make Righthaven’s economic model "irreparably untenable."

***

Righthaven CEO Steven Gibson says Righthaven’s lawsuits over Review-Journal material are on solid ground despite claims by defense attorneys that new evidence shows Righthaven is using "sham" copyright assignments and has perpetrated a "fraud" on the Nevada federal court.

"That agreement is being grossly misinterpreted by the press and people running with things like 'sham' and 'fraud' frankly ought to be ashamed of themselves with that kind of inflammatory language," Gibson told WNYC Radio/National Public Radio’s "On The Media" last week

Righthaven says there’s nothing wrong with it acquiring copyrights from Stephens Media, and then licensing back to Stephens Media the right to use the material covered by the copyrights.

Defense attorneys, including those representing the Democratic Underground, say this arrangement shows Righthaven actually is conveyed only the rights to sue and therefore "the assignment to Righthaven is invalid."

They also say that since Righthaven has no right to display or otherwise use the copyrighted material, it can suffer no harm when that material is infringed on.

The Nevada federal judges handling Righthaven cases have not yet ruled on this dispute.

It’s unknown if the Denver Post has a similar licensing arrangement with Righthaven -- and Denver Westword reports the Post isn’t talking about it.

***

Gibson, interestingly, in his interview for "On the Media" again said Righthaven’s business addresses copyright infringement and "theft."

It’s that kind of talk that particularly upsets his litigation foes in South Carolina, who in a letter to a Righthaven attorney last month complained that Gibson had "given an interview to the national press where he referred to my client as a member of a community of thieves."

The attorney, J. Todd Kincannon, representing Righthaven defendant Dana Eiser, said in a letter that Righthaven was filing "frivolous lawsuits with no notice to defendants" as part of a business model to "leverage settlements out of these folks by causing them intense emotional stress and financial pressure."

The South Carolina court has yet to rule on Eiser’s latest motion to dismiss.

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