Veterans advocate not satisfied with offer to drop copyright lawsuit
29 April 2011
Righthaven LLC/Denver Post lawsuit defendant Denise Nichols remains unhappy — despite efforts by Righthaven to dismiss its lawsuit against her.
Nichols, a retired Air Force nurse, served in the Vietnam era and in combat in the first Gulf War.
As an advocate for veterans who works to provide them information, she ran into trouble with Righthaven for allegedly posting a Denver Post column of interest to veterans to the website veteranstoday.com.
Given recent Righthaven-created case law, Nichols could be asserting a fair use defense.
But that may not be necessary as Righthaven — upon learning Nichols is a veteran who is dealing with her own health problems — is willing to dismiss its lawsuit against her.
People close to Nichols, though, told the Las Vegas Sun and its sister publication VEGAS INC this week that Nichols is adamantly opposed to the proposed language in Righthaven’s dismissal motion.
“In dismissing this action, Righthaven acknowledges that it has, and will continue to, consider such factors in deciding whether to voluntarily dismiss an action as the physical and mental condition of a defendant, his or her prior military service, and the viability of enforcing any resulting judgment. While such circumstances may not excuse a party from copyright infringement liability, Righthaven seeks to reasonably and appropriately address the facts presented in any action on an individual and equitable basis,” says the language in the proposed dismissal motion.
Nichols declined comment, but people close to her said she’s opposed to any language in the dismissal order that would make it appear Righthaven is being nice to veterans and people with disabilities.
It’s her position that Righthaven, with its no-warning lawsuits and associated mental anguish and financial worries, has worsened her health problems — she participated during a court hearing in her case last week by phone while receiving medical care at the Washington DC VA Medical Center.
Nichols also feels Righthaven has unfairly tormented her and fellow defendant Wayne Hoehn, a decorated veteran from Kentucky, as well as mildly autistic blogger and former defendant Brian Hill from North Carolina.
She especially feels veterans who put their lives on the line for their country deserve better treatment than they’re receiving from Righthaven, these people said.
Righthaven, in suing Nichols and fellow veterans advocate Michael Leon, could easily have deduced they were veterans advocates.
But Righthaven, with its policy of suing first and asking questions later, couldn’t have known Nichols has health problems or that Hill has disabilities.
Shawn Mangano, an attorney for Righthaven, said the language in the proposed dismissal order in the Nichols case is negotiable and he’s happy to talk with her and her attorneys to come up with language acceptable to Nichols.
“I understand she’s upset. I want to be reasonable with her,” Mangano said.
But he added that Righthaven can’t give veterans a blanket exemption from copyright enforcement actions.
Another Righthaven defendant indicating he has disabilities and limited ability to pay any judgment is Todd Taliaferro of Fort Lauderdale, Fla., who was sued over a Las Vegas Review-Journal column.
“Defendant is presently unemployed and on food stamps due to the debilitating effects of a traffic accident some 15 years ago which left him with foot injuries which make it extremely difficult to walk,” Taliaferro wrote in his dismissal motion.
Taliaferro said the column at issue, involving the biker bandit robbing the Bellagio, was posted on a noncommercial website for Harley-Davidson motorcycle enthusiasts.
“In fact, plaintiff placed the alleged article on a website which plaintiff itself made available in Florida, and elsewhere, without charge, and which plaintiff invited individuals to copy and utilize for personal non-commercial purposes,” his response said.
Mangano, in opposing the motion to dismiss, wrote in a court filing Righthaven was unaware of the defendant’s medical condition or financial hardships but would consider them in confidential settlement negotiations.
In arguing against dismissal, Mangano noted the defendant is “alleged to have posted a wholesale, unauthorized replication of the work (column)” from the Review-Journal without authorization.
A new court document is shedding some light on the lawsuit contract between Righthaven and the Denver Post.
Sara Glines, vice president of field operations for Post owner MediaNews Group, said in a court declaration this week that MediaNews and/or the Post have a licensing arrangement with Righthaven.
This arrangement appears to be similar to Righthaven’s lawsuit contract with Stephens Media LLC, owner of the Review-Journal.
In the Stephens Media contract, Righthaven obtains copyrights to Review-Journal material for lawsuit purposes, and then grants Stephens Media a license to use the material initially generated by Stephens Media’s journalists.
Defense attorneys in Righthaven’s lawsuits over Review-Journal material call this a “sham” copyright transfer that invalidates the lawsuits, and a federal judge in Las Vegas on Thursday said it appears that under this contract Righthaven lacks standing to sue.
Righthaven, however, insists it has standing and is gearing up to defend that position in court.
In Righthaven’s lawsuits over a Nov. 18 Denver Post TSA pat-down photo, Glines said in her declaration that on Dec. 2, “all rights, title and interest, including the right to any and all past, present and future rights to pursue claims of infringement, in and to the work (photo) were assigned to the plaintiff (Righthaven).”
But bloggers and websites infringing on the photo continue to harm the Denver Post and MediaNews Group, she said.
“The Denver Post has been harmed by the unauthorized posting of the work by the defendants in this action and in other actions because such conduct impairs certain license rights granted to it and/or to MediaNews Group by the plaintiff (Righthaven),” her declaration said.
The revelation of a licensing agreement between Righthaven and the Denver Post is likely to fuel interest by defense attorneys in whether Righthaven’s right to sue over Denver Post material is vulnerable to challenges the way it’s being challenged in the Review-Journal cases.
Some of Righthaven’s Denver Post lawsuit defendants, including Dana Eiser in South Carolina, have already challenged Righthaven’s standing to sue over Denver Post material — though in Eiser’s case the copyright involved a column rather than a photo.
And David Rozzell of Katy, Texas, one of Righthaven’s Colorado lawsuit defendants over the Post TSA pat-down photo, has moved that Righthaven produce its lawsuit contract with the Post.
Rozzell asked in answering Righthaven’s lawsuit that “any document related to the relationship between the plaintiff and MediaNews Group, the original alleged publisher of the work in this case, be produced so as to establish whether the plaintiff has sufficient legal grounds to bring this lawsuit.”
Glines’ declaration was filed in the Righthaven lawsuit over the photo against William Sumner, who has a website called dailykix.com.
“None of the defendants named in this lawsuit, or anyone on their behalf, has ever sought permission from the Denver Post to reproduce, display, publish or otherwise use the work. The Denver Post has likewise not authorized the work to be reproduced, displayed or otherwise disseminated by the Internet website deadseriousnews.com or any other like website,” Glines said.
The deadseriousnews.com website appears to be the source of several infringements of the photo that resulted in Righthaven lawsuits.
It’s unclear if deadseriousnews.com — which has not been sued by Righthaven — obtained the photo from the Denver Post or elsewhere, as The Associated Press had distributed the photo to news outlets after obtaining it from the Denver Post.
Righthaven attorneys, in the meantime, disputed assertions by Sumner in a motion to dismiss that Righthaven is suing him over a “thumbnail image” that was never actually hosted on or copied to the dailykix.com server.
Sumner said his website merely displays titles, brief excerpts, and vote counts for popular stories at other social media news sites. The site only has links to content residing elsewhere, Sumner’s filing said.
Righthaven, however, said in court papers that Sumner is responsible for the content on his website.
“Defendant’s assertions, completely ignore that as the owner and operator he undoubtedly had editorial control over the content appearing on the website. Simply put, content does not automatically appear on one’s website without some intentional act or editorial oversight by its owner, operator, administrative contact and technical contact person, which in this case is the same person — the defendant,” a Righthaven filing this week said.
“Defendant essentially claims that he is not liable for an unauthorized replication of the work appearing on the website that he owns, controls and has technical and administrative control over. This liability, apparently based on the defendant’s interpretation of the circumstances, is more appropriately directed to another source, such as mix.com, digg.com and/or deadseriousnews.com. In short, someone is liable for the unauthorized posting of the work on his Website — just not him,” Righthaven’s filing said.
More Righthaven defendants are trying to capitalize on two recent legal setbacks by Righthaven.
Attorneys for the Virginia Citizens Defense League on Wednesday filed court papers saying Righthaven’s fair use loss in the Center for Intercultural Organizing (CIO) of Portland, Ore., case shows their case should be dismissed, too.
“The order dismissing the CIO case is relevant to the case at bar because, in determining that the alleged infringement instead constituted fair use by the defendant, Judge James Mahan relied on the facts that: 1) the article in question was originally a news article, was used by the defendant for educational purposes, and is now being used by Righthaven simply for litigation purposes; 2) the defendant ‘is a non-profit corporation with an educational mission,’ declarations evidenced the corporation’s educational mission, and the use of the work was non-commercial; 3) the article was not primarily creative in nature, but was merely informational, which weighs in favor of a finding of fair use; 4) although the work was posted in its entirety, that was reasonable in light of the use, which was to educate others on issues of concern to the defendant; 5) an entire book was not reproduced, the work was not used to garner membership in order to compete with the plaintiff, and the defendant attributed the work to the original copyright owner; and 6) there is no showing of market harm to Righthaven, because it has failed to allege that a market exists for its copyrights, Righthaven cannot claim the original newspaper publisher’s market as its own, and it has failed to show any harm to the value of the copyright,” their filing said.
The Virginia group previously moved for dismissal of the case involving a Review-Journal story on other grounds, such as “implied license” to share and that it’s a passive noncommercial site with no contacts with Nevada.
An attorney for Righthaven foe the Electronic Frontier Foundation, which participated in the CIO case, noted in a website post this week that Mahan’s decision shows courts disfavor the copyright-troll business model.
As to the unsealing of the Righthaven lawsuit contract with Stephens Media, Righthaven defendant Dean Mostofi says in a renewed motion to dismiss that the contract shows Righthaven doesn’t have standing to sue him over a Review-Journal story — arguments disputed by Righthaven.
“Righthaven is neither the owner nor exclusive holder of any rights in the copyrighted work underlying this lawsuit,” Mostofi’s motion says.
“Not only has Righthaven not suffered any harm as a result of the alleged infringement, but it actually benefits from infringing activity. Without a share of the settlement proceeds it exacts from defendants in copyright infringement lawsuits, Righthaven, by the express terms of its strategic alliance agreement with Stephens Media, could not generate any other income from the works it claims to own,” Mostofi wrote.
And for good measure, Mostofi noted in his latest dismissal motions the Righthaven fair use loss in the CIO case.
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