Music, book industries may back Righthaven
4 December 2011
The U.S. music and book publishing industries may intervene on behalf of Righthaven LLC of Las Vegas in one of its copyright lawsuits, an attorney said Sunday.
Their potential involvement on behalf of Righthaven was revealed when one of the attorneys fighting Righthaven warned a lawyer for the recording and publishing industries that they face a public relations disaster if they side with Righthaven.
Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and formerly of the Denver Post.
Since March 2010, Righthaven has filed 275 no-warning lawsuits charging websites, message board posters and bloggers infringed on material from those newspapers by posting it online without authorization.
The suits were based on copyrights Righthaven obtained from the newspapers for lawsuit purposes. The suits were a dramatic departure from the usual newspaper industry practice of issuing takedown orders and requests before resorting to lawsuits over copyright issues.
Righthaven initially won what are believed to be hundreds of thousands of dollars in settlements from scores of defendants.
But lately the company has been struggling after six judges ruled Righthaven lacked standing to sue because — despite Righthaven’s claims of copyright ownership — the newspapers actually maintained control of the material Righthaven was suing over.
On top of that, Righthaven has suffered four lawsuit defeats on fair use grounds.
In the lawsuit the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) apparently want to participate in, U.S. District Judge Philip Pro in Las Vegas threw out a Righthaven lawsuit against Kentucky message board poster Wayne Hoehn.
Pro found that Righthaven lacked standing to sue Hoehn over his post of an entire R-J column.
And even if it had standing to sue, Hoehn was protected by the copyright law doctrine of fair use in his noncommercial use of the entire column, Pro ruled.
Righthaven is arguing in its appeal to the 9th U.S. Circuit Court of Appeals in San Francisco that it had standing to sue and that Hoehn was not protected by fair use.
It’s also arguing that once Pro found Righthaven lacked standing, the case was over and Pro lacked authority to issue the fair use ruling. This is the narrow legal issue the RIAA and the AAP want to argue as neutral friends of the appeals court, according to one of Hoehn’s attorneys, Marc Randazza in Las Vegas.
Despite these claims of neutrality, the groups taking such a position would align themselves squarely against Hoehn and with Righthaven, Randazza said.
A request for comment was placed with the RIAA and AAP.
The attorney who represents them on the issue, Matthew Williams in Washington, D.C., declined comment.
Randazza, in a letter sent Sunday to Williams, of the law firm Mitchell Silberberg and Knupp LLP, wrote "you shared that your clients intend to argue that Righthaven’s lack of standing precluded the District of Nevada from making a finding of fair use."
Efforts by the book and music industries to overturn Hoehn’s fair use victory wouldn’t be surprising as multiple media observers and attorneys have commented that this is one of the Righthaven cases that has backfired on the media industry by weakening – as opposed to bolstering – copyright protections for content producers.
BNA (the Bureau of National Affairs) reported last month that Jennifer Pariser, senior vice president of litigation & anti-piracy for RIAA, said during a legal seminar that Pro shouldn't have considered the fair use issue after deciding Righthaven lacked standing.
"From our perspective, that just can't stand," Pariser said, according to BNA.
Groups desiring to participate in the Hoehn appeal taking Righthaven’s side will likely face opposition from Randazza, who has been trying to collect more than $63,000 in unpaid attorney’s fees from Righthaven and has asked Pro to appoint a receiver to auction Righthaven’s assets.
With Hoehn the likely buyer of the copyright in his case, should the copyright be auctioned, Righthaven’s appeal would be over as it would no longer have a copyright to sue over, Randazza said in his letter to Williams.
Randazza also said Hoehn won’t cooperate with the RIAA and AAP’s request that they be allowed to participate as "amici," or friends of the court.
"Wayne Hoehn is a highly decorated Vietnam veteran who, while handing a series of humiliating defeats to Righthaven, has expended much of his savings in this battle," Randazza wrote in his letter. "He has further become a symbol of resistance to the abusive litigation tactics engaged in by Righthaven.
"If you have actually managed to convince your clients that it is a good idea for them to spend tens of thousands of dollars (or more) in this case for the sole eventual purpose of merely costing Mr. Hoehn money, you can rest assured that it will be a public relations negative for them, in no small part due to Righthaven’s poor handling of this case, along with hundreds of others," Randazza wrote. "Your clients will waste money and all the money will buy them is the opportunity to look like idiots."
Not mentioned in the Randazza letter is information about Righthaven’s previous public relations debacles that likely will be forwarded to anyone wishing to participate in the appeals as a friend of the court.
These problems included Righthaven suing R-J news and advertising sources; it suing an autistic blogger over a Denver Post photo, causing a protest by press freedom group Reporters Without Borders; and judges in Nevada and Colorado criticizing the company for their belief Righthaven had misled them, that it may be practicing law without a license
R-J owner Stephens Media LLC, however, has said the Righthaven lawsuits are needed to combat a parasitic business model in which news content is regularly stolen by infringers.
Stephens Media participates in the Righthaven lawsuits in multiple ways.
It transfers copyrights to Righthaven for lawsuit purposes and earns a cut of the lawsuit revenue.
The same investors who own Stephens Media own half of Righthaven — and lately Stephens Media has been defending itself in a counterclaim charging the Righthaven lawsuits over R-J material were based on sham copyright assignments from Stephens Media.
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