Critic blames Righthaven CEO for misrepresentations
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8 July 2011
2:05 a.m.
Righthaven Archives
Righthaven LLC has "tarnished the integrity of the justice system" and CEO Steven Gibson is personally responsible for his company’s misrepresentations to federal judges, an opposing attorney charged Thursday.
Righthaven is a Las Vegas company that files no-warning copyright infringement lawsuits over Las Vegas Review-Journal and Denver Post material. The company says the suits are needed to deter rampant misappropriation of newspaper material, while critics say the suits are frivolous as they involve fair use of news content or issues that could easily be resolved out of court.
After filing 274 lawsuits since March 2010, the litigation campaign appears stalled after Righthaven was hit with a series of legal setbacks.
In a key Righthaven lawsuit against the Democratic Underground, U.S. District Court Judge Roger Hunt in Las Vegas last month dismissed Righthaven from the case for lack of standing and threatened sanctions, writing, "The court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the court."
The standing issue has emerged as a key problem for Righthaven.
Federal judges say plaintiffs in copyright infringement lawsuits must have complete control of the copyrights they sue over.
But in the Righthaven cases, it appears the Review-Journal and the Denver Post maintain authority over the copyrighted material at issue, with veto power over who can be sued and limits on how Righthaven can use the copyrights outside of lawsuits.
On the sanctions issue, Hunt wrote that a "flagrant misrepresentation’" was Righthaven’s failure to disclose that Stephens Media LLC, owner of the Review-Journal, is an interested party in the lawsuits over R-J content as it receives 50 percent of lawsuit winnings minus costs.
Seeking to avoid sanctions, Righthaven responded by saying two former Righthaven attorneys and a current attorney didn’t fully understand or appreciate the need to disclose Stephens Media’s involvement in the lawsuits. Such disclosures are required by court rules so judges can be alerted to any conflicts of interest they may have in cases presented to them. Gibson was not among the three attorneys Righthaven blamed for the problem.
Kurt Opsahl, an attorney for the Democratic Underground, ripped into Righthaven and Gibson on the sanctions issue Thursday with his own court filing on behalf of the Democratic Underground.
Opsahl, an attorney for the digital freedom group the Electronic Frontier Foundation in San Francisco, said Righthaven’s June 29 response to Hunt’s sanctions threat failed to mention that:
• Gibson was an attorney of record in the Democratic Underground case when the certificate of interested parties was filed failing to mention Stephens Media.
• Gibson’s name is on such certificates in at least five other cases, none naming Stephens Media when they were filed.
• Gibson supervised the attorneys who filed the disclosures.
Gibson was "responsible for ensuring that the Certificate of Interested Parties was candid when first filed and for correcting any errors thereafter."
"Mr. Gibson presents himself as a lawyer with nearly 20 years of experience, and who specializes in drafting intellectual property contracts. He certainly can be expected to know that a 50/50 interest (less costs) in the recovery is a direct, pecuniary (financial) interest and to take responsibility for his employees’ actions,’’ Opsahl wrote in his filing.
In perhaps an even more damaging assessment, Opsahl argued "Righthaven’s misrepresentation was part of a concerted effort to avoid admitting Stephens Media’s role in this litigation."
"The misrepresentations in the other actions … not only concealed the actually interested parties in those cases, but allowed Righthaven to continue to litigate hundreds of cases for months over a right that it did not have, raising defense costs and resulting in settlements that may never have happened if the truth had been known,’’ Opsahl wrote.
"Righthaven’s failure to fully disclose its relationship with Stephens Media has prolonged this litigation and hundreds of other cases, placed unnecessary burdens on the court and the defendants and tarnished the integrity of the justice system,’’ Opsahl wrote, adding potential sanctions to deter such conduct include monetary penalties, issuing an admonition, reprimand, or censure to counsel; referring the matter to disciplinary authorities and disqualifying counsel.
Gibson hasn’t responded in court to Opsahl’s filing, but he suggested to Las Vegas Sun journalist Jon Ralston that it appeared Hunt’s sanctions threat was merely guidance for future litigants.
“I think part of what’s happening here is that the federal judges recognize that Righthaven has hired some of the top lawyers across the country. Copyright lawyers. Harvard law professors. And they understand that we’re affiliated with an organization as reputable as Stephens Media,” Gibson told Ralston.
“I think what the judges are saying is ‘listen, folks, Righthaven is filing a lot of lawsuits.’ They understand that we’re potentially genuine with respect to upholding copyrights. They don’t want to see Righthaven competitors potentially come on with not-solid documentation, and they’re giving us guidance as to what the documentation should be,” Gibson said June 22 on Ralston’s news discussion show "Face to Face with Jon Ralston."
Hunt has set a July 14 hearing on the sanctions issue.
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Not just Gibson but every attorney whose name appears on a document ["written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- "] that is representated in federal court is expected under Rule 11 of the Federal Rules of Civil Procedure to certify a document is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances":
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
http://www.law.cornell.edu/rules/frcp/Ru...
I think it is safe to state Righthaven and its attorneys have failed in this responsibility.
The Republicans mantra has been "torte reform: and "lawsuit abuse" as the solution to everything, jobs, affordable medical care, etc., now this "journalistic" clown college focuses on this failed profit center and not running a paper. This story is as important as Murdoch's News of the World meltdown, and the National Broadcast Media has not picked the story up.
From the Nevada Rules of Professional Conduct
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers.
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Chunky says:
He sees a big avalanche rolling down the hill toward Righthaven but it's not snow!
The justice system and legal community should have purged this mess more than a year ago before it ruined or damaged the lives of some of the defendants. Even a lay-person could see this was a sham from the start.
That's what Chunky thinks!
Gibson's missed his calling. The guy's got charisma. With all his altruism about protecting copyright, he'd be fabulous on the Jon Stewart Show.
Naw, Gibson needs to do a guest spot on Colbert. :)