Righthaven, critics take shots at each other
15 August 2011
With complaints piling up about copyright lawsuit filer Righthaven LLC, Righthaven says the criticism is getting out of hand in one case and it’s objecting to what it calls a "hatchet job" by defense attorneys.
Righthaven, which since March 2010 has filed 275 lawsuits over Las Vegas Review-Journal and Denver Post content, has faced a barrage of criticism this summer after federal judges ruled it lacked standing to sue over R-J stories, one judge hit the company with sanctions and another judge handed Righthaven its third lawsuit loss on fair use grounds.
Righthaven says its no-warning lawsuits are necessary to crack down on rampant online infringement of news content – but critics say Righthaven’s litigation tactics are abusive as it tries to coerce defendants into settling with frivolous lawsuits, dubious legal claims and questionable demands for damages of $150,000 and forfeiture of defendants’ website domain names.
In the latest blast at Righthaven, defendant the Law Med Blog on Friday accused the Las Vegas company of "fraud upon the court."
Law Med, which hasn’t been served with Righthaven’s lawsuit, complained Righthaven has falsely certified to U.S. District Judge Roger Hunt in Las Vegas that it can’t locate Law Med and that’s why it has not provided Law Med with sanctions information Righthaven is supposed to provide to all defendants in active suits over R-J stories.
This sanctions information is supposed to include the transcript of a July 14 hearing in which Hunt fined Righthaven $5,000 and said Righthaven had deliberately hidden from the court the role in its R-J lawsuits of R-J parent company Stephens Media LLC.
Defendants are also supposed to receive an order from Hunt in June in which Hunt found Righthaven’s initial claims that it had standing to sue over R-J material "flagrantly false — to the point that the claim is disingenuous, if not outright deceitful."
Defendants receiving this sanctions information are using it to fight Righthaven by showing it to their judges as they seek dismissal of Righthaven lawsuits against them and recovery of their legal fees.
Law Med, in its criticism of Righthaven on Friday, said Righthaven had lied to the court by claiming Aug. 8 it had no address for Law Med and certain other defendants when in fact the summons for Law Med – and the summonses in some other recent cases – were filed with the lawsuits and list the defendants’ addresses.
"Law Med will be taking action to notify Judge Roger L. Hunt, Nevada Federal District Court, that Righthaven and its attorneys, already sanction for misrepresenting facts to the court, have now defied his order and lied through their teeth about it," said the post by Law Med, which was sued along with codefendant Greg Stocks.
Shawn Mangano, an attorney for Righthaven, on Sunday denied the fraud allegation.
"Righthaven has diligently sought to comply with Judge Hunt's requirement to provide copies of all material identified in his decision," Mangano said. "To the extent Righthaven has misidentified parties as not having been served a summons and complaint in a pending action, it will promptly take corrective action. For any party to immediately conclude that Righthaven has committed a fraud on the court, where service has not been accomplished, because they were not provided the required materials is completely unwarranted and, frankly, offensive. It defies common sense that Righthaven would intentionally fail to provide the required materials to a party when it has provided materials to numerous parties and to the United States District Court in Colorado.
"Any such party should contact me and arrange to accept service of the complaint in their case and provide an address, physical or electronic, so that Righthaven may provide them the required materials immediately," he said.
In another Righthaven lawsuit against message board poster Wayne Hoehn, defense attorneys on Aug. 1 wrote in a court brief that "Righthaven exists only to file lawsuits and his misled the courts," and "If there were even a party to sanction with attorney’s fees using this court’s inherent powers, it is Righthaven."
The Hoehn case is the one in which U.S. District Judge Philip Pro not only dismissed the lawsuit for lack of standing, but also found Hoehn was protected by fair use in posting an entire Review-Journal column on a sports betting website message board.
Hoehn’s attorneys with Randazza Legal Group in Las Vegas are now asking for their $34,000 in legal fees, and to back up their case they asked Pro on Aug. 1 to consider information in other cases harmful to Righthaven including Hunt’s sanction order and a brief by attorneys for Denver Post defendant Brian Hill.
In the Hill brief, his attorneys said that after Righthaven sued the autistic blogger and later learned of his disabilities, a Righthaven attorney nevertheless demanded Hill pay $6,000 and threatened to garnish his Social Security Disability Insurance payments at the rate of $50 per month – even though federal law bars such garnishments. They charged Righthaven tried to get Hill to sign off on a false press release about the debacle, though Righthaven says it was Hill's attorneys who blocked a reasonable settlement. Righthaven eventually dropped that case and a motion that Righthaven pay Hill's fees is pending.
Pro should consider this information, Hoehn’s attorneys said, because they "are revealing of Righthaven’s conduct in the course of its 18-month litigation campaign and reveal a pattern of bad faith present not only in this case, but across numerous cases and districts, as a veritable litigation strategy."
While Righthaven claims Pro can’t award attorney’s fees in the Hoehn case because he dismissed it and now lacks jurisdiction, Hoehn’s attorneys said this argument was "bizarre" as Pro’s ruling dealt with the merits of the case, not jurisdiction, and that the court has "remedial power to punish a party for bad faith litigation."
"Righthaven, and its CEO Steven Gibson, likely believe themselves very clever in arguing, albeit from a too-simplistic viewpoint, that they will not be liable for paying the attorney’s fees of defendants who stood up for their rights in this district," the filing by Hoehn’s attorneys said. "Failing to return Mr. Hoehn to his previous condition – making him whole – by placing the burden of this bad faith litigation on the bad actor will not only be manifestly unjust, it will only encourage Righthaven to continue in its current course of action. Enough is enough."
Righthaven, in its own filing on Friday, disputed these characterizations of its litigation campaign and said Pro should not consider the records in the other cases as proposed by Hoehn’s attorneys.
"Defendant’s reply brief begins with a literary hatchet job concerning Righthaven’s litigation efforts in this district and in the District of Colorado. Defendant’s mudslinging tactics are largely based on the materials of which his motion requests the court improperly take judicial notice.
"Virtually all of the submissions for which the defendant asks the court to take judicial notice are certainly subject to dispute and which also contain multiple levels of inadmissible hearsay. These are certainly not materials upon which judicial notice should be taken," the filing said.
Pro hasn’t indicated when he’ll rule on the fee dispute and Righthaven, in the meantime, is appealing his dismissal of its lawsuit.
In another case in which a prevailing defendant is seeking his legal fees, attorneys for defendant Thomas DiBiase recalled several instances of what they said was wrongdoing by Righthaven in a filing on Friday.
In commenting on Righthaven’s opposition brief, DiBiase’s attorneys for the Electronic Frontier Foundation wrote: "Righthaven does not dispute that it harbored bad-faith motives when bringing this lawsuit; that its complaint falsely claimed to own the copyright for the article; that it committed fraud on the copyright office; and that it improperly concealed its relationship with Stephens Media during the discovery process."
The attorneys with the Electronic Frontier Foundation said Righthaven’s response to their motion for attorney’s fees failed to address the controlling case law, so they’re increasing their fee demand from the original discounted amount of $166,718 to a "full freight" award of $199,250.
"The enhanced award seems particularly warranted given Righthaven’s response to the present motion. Righthaven cited numerous inapposite cases from all over the country in its opposition brief, but failed to even mention the controlling case. That strategy is emblematic of Righthaven’s larger litigation campaign: it takes wildly untenable legal positions and continues to press them as if repetition somehow substitutes for merit," the EFF attorneys wrote.
In another case, defendant Dean Mostofi wants recovery of his $1,199 in legal expenses. His case was dismissed because of Righthaven’s lack of standing, but Righthaven promptly sued him again under its revised lawsuit contract with the Review-Journal.
Mostofi in his motion for recovery of his costs cited Righthaven’s claim in its lawsuit it owned the copyright it was suing over -- "allegations it must have known were false."
Righthaven indicted in its own filing it would resist Mostofi’s fee motion, calling it "laughable" as Mostofi represented himself in the lawsuit and seeks recovery of costs for legal advice. Righthaven reiterated arguments that since U.S. District Judge Kent Dawson dismissed the lawsuit for lack of standing, he no longer has jurisdiction in the case to award fees.
Righthaven, separately, continues to wait for one or more of the Nevada federal judges to rule on whether its revised lawsuit contract with the R-J gives it standing to sue.
In new court filings Friday, attorneys for defendant the Democratic Underground argued it does not. Righthaven was removed from that case for lack of standing, but it remains open so the Democratic Underground can pursue its counterclaim against R-J owner Stephens Media LLC. Righthaven is now trying to intervene in that case, claiming it now controls the copyright at issue under its amended lawsuit contract with Stephens Media.
"Righthaven is not entitled to return to court -- in this action or any other – and pretend that the SAA is something other than what this court found it to be," Democratic Underground attorneys with the Electronic Frontier Foundation wrote in their filings.
The SAA is the Strategic Alliance Agreement between Righthaven and Stephens Media. Hunt found the lawsuit contract didn’t provide Righthaven with rights to sue over R-J material.
"Righthaven’s claim to a protectable interest also fails" in part because "as a champertous agreement, the SAA, and any amendments to it, remain unenforceable," the Democratic Underground filing said.
Champerty has been described as an illegal form of ambulance chasing in which a party with no interest in a dispute tries to incite litigation over that dispute in order to make money. Righthaven has denied it's involved in champerty or a related allegation it's involved in the unauthorized practice of law.
The Democratic Underground also charged that Righthaven’s claims to full ownership of material it has been suing over contradict the terms of its original R-J lawsuit contract and they aren’t valid because Stephens Media, with its own licensing deals with third parties, has shown it continues to control the copyrights.
"The truth is that Righthaven and Stephens Media attempted to divest Stephens Media of its claims after this court found the latter to be the real party, solely to undo this court’s order," the Democratic Underground filing said.
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