Righthaven Archives
Las Vegas newspaper copyright lawsuit filer Righthaven LLC won a ruling over disputed legal fees Monday – and said Tuesday it may appeal an earlier order requiring it to pay another defendant’s fees.
At the same time, Righthaven was hit with a new charge of being a "gang of con artists."
Righthaven is the company that since March 2010 has filed 274 lawsuits claiming material from the Las Vegas Review-Journal and the Denver Post has been misappropriated by website operators, bloggers and message board posters.
With three defendants defeating Righthaven on fair use grounds and two judges finding it has no standing to sue over Review-Journal material, Righthaven’s litigation business appears to be stalled.
Another problem facing the company is that a judge has ordered it to pay attorney’s fees to lawyers for one prevailing defendant and at least four more defendants have asked that their legal fees be paid as well.
U.S. District Judge Gloria Navarro on July 5 ordered Righthaven to pay $3,815 to Randazza Legal Group for representing defendant Michael Leon on a pro bono, or free, basis.
Navarro had dismissed Righthaven’s suit against Leon without prejudice, meaning he can be sued again, after a series of errors including Leon not being served with the suit in time.
After Righthaven apparently balked at paying the fees, Randazza Legal Group attorneys on Saturday asked for an injunction against Righthaven freezing $3,815 of its assets so they can get paid.
Righthaven responded on Tuesday, asking Navarro to temporarily stay judgment of her fee award "so that it can properly evaluate any potential appealable issues" in her fee ruling.
"As the court is certainly aware, Righthaven’s counsel dismissed the action against Leon without prejudice based on the belief that any resulting fee award would be made to a non-profit legal organization. Counsel certainly did not believe this `non-profit legal organization’ would be opposing counsel’s law firm. Had this fact been made clear, Righthaven would have unquestionably dismissed its claims against Leon with prejudice," Righthaven argued in Tuesday’s court filing.
By dismissing the suit with prejudice, Righthaven likely could have avoided paying the legal fees.
Randazza Legal Group later Tuesday filed a brief opposing Righthaven’s motion that Navarro stay judgment of her fee award.
In its latest filing, the Randazza firm threatened to lien Righthaven’s assets – including newspaper copyrights it claims to own.
"The 30 days Righthaven seeks to stay the (Randazza) firm’s judgment allow it to do considerable damage to the firm’s ability to collect any judgment from Righthaven – frustrating any purpose this court hoped to further by granting its fee award. In addition to hiding its monetary assets, this stay seems calculated to give Righthaven the opportunity to disgorge its intangible property – its Righthaven trademark and Castle (marketing) mark, the righthaven.com domain name and even its allegedly owned copyright rights," Randazza’s filing said.
Two judges have found Righthaven doesn’t own the copyrights it sues over.
But Randazza attorneys wrote that – for the sake of argument -- if Righthaven has any rights in these copyrights, "these ownership interests can be enjoined from disgorgement and assigned to the firm (or other judgment debtors – a number of which are lined up to take their share of Righthaven’s ill-gotten gains) in satisfaction of its judgment."
"Fee awards are granted in cases such as this one in order to further the purposes of the Copyright Act," the Randazza filing said. "The firm is well aware of the fact that scores of poor defendants in Righthaven cases have been bullied into making payments to Righthaven, despite the clear indications that the cases had no legally supportable foundation. If Righthaven can simply frustrate pro bono (free) counsel’s efforts to collect fees, there will be less of an incentive for experienced counsel to get involved in these kinds of cases."
Separately, Navarro on Monday rejected a request by Leon’s co-defendant and fellow veterans' advocate, Denise Nichols, that she require Righthaven to reimburse her for $1,500-$1,600 in legal costs.
After settlement talks broke down between Righthaven and Nichols in the suit over an alleged infringement of a Denver Post column, Righthaven dropped its suit against Nichols with prejudice – meaning it can’t sue her again over the same alleged infringement.
Righthaven in its dismissal noted Nichols’ status as an Air Force nurse veteran who appears to be suffering from health problems.
Nichols, who lives in the Denver area, says she has symptoms of Gulf War syndrome illnesses from her combat service in the first Gulf War, Desert Storm, and that the stress of Righthaven’s no-warning lawsuit is threatening to harm her health further.
Saying Righthaven is involved in "terrorism and a threat to freedom of speech," Nichols has complained that after Righthaven served her with the wrong version of the lawsuit, a version not even naming her as a party, Righthaven engaged in bad-faith negotiations in settlement talks.
She claimed Righthaven tried to get her to sign off on a dismissal order indicating Righthaven is sympathetic to veterans and people with disabilities – despite its history of suing several veterans, veterans groups and an autistic blogger.
"This court has within its authority and discretion to award me attorney’s fees and costs incurred for Righthaven’s admitted mistakes and outright dishonesty demonstrated in this matter," Nichols wrote in a June 9 letter to Navarro.
Righthaven, however, argued Nichols was demanding "blood money" she’s not entitled to as it dismissed the suit against her with prejudice, meaning it can’t sue her again.
Navarro, in siding with Righthaven on Monday, noted that during an April 20 hearing Nichols and her attorney agreed that "a decision on her motion to dismiss would be deferred while the parties worked out an arrangement regarding attorney’s fees and whether or not the dismissal would be with prejudice or without prejudice. The parties never agreed on the terms of dismissal and plaintiff eventually filed a voluntary dismissal with prejudice."
Navarro wrote in Monday’s ruling that Nichols was alleging a "Rule 11 violation" accusing Righthaven of making misrepresentations to the court.
"The court does not find that Rule 11 sanctions are warranted for this matter. Further, the court made it clear at the hearing that if dismissal was with prejudice, attorney’s fees would not be granted," Navarro wrote in her order.
For Nichols, the decision to try to negotiate a settlement with Righthaven appears to have worked to her disadvantage.
That‘s because after the April 20 hearing, Righthaven’s standing to sue over Review-Journal material was struck down by two Nevada judges and defense attorneys say the disclosure of Righthaven’s lawsuit contract with the Denver Post indicates Righthaven didn’t have standing to sue Nichols and others over alleged infringements of Denver Post material.
Also after the April 20 hearing, Righthaven was hit with a third fair use loss indicating Nichols’ alleged posting of a Denver Post column of interest to veterans on the veteranstoday.com website may have been protected by the fair use doctrine of copyright law.
"Judge Navarro's order affirms the importance of following the law and procedures and the judge has ruled within the parameters of the April 20 hearing," Leon said of Monday’s ruling against Nichols. "Denise had no way of knowing Righthaven would pull this scheme of filing and running."
"Righthaven acted in bad faith in the negotiations, terrorizing a true hero in this 20-year veteran nurse, and made a victim out of Denise Nichols with a ludicrous lawsuit lacking standing, no mention of Denise Nichols and any sense of decency. Denise is out $1,600 in attorneys' fees and serious health problems made worse by Righthaven's abuse of process," Leon said.
"That Denise Nichols has been proven correct in her characterization of Righthaven provides a small matter of satisfaction. I predict Righthaven will get their comeuppance before the end of this calendar year," he said.
Separately, attorneys for Righthaven defendant Dana Eiser in South Carolina filed another brief against Righthaven on Monday.
Eiser’s attorney, Todd Kincannon, is litigating against Righthaven in four courts: Federal court in South Carolina, state court in South Carolina, the South Carolina Supreme Court and federal court in Nevada. In Nevada, Kincannon’s group, Citizens Against Litigation Abuse Inc., is acting as a friend of the court in two cases arguing Righthaven has been practicing law without a license.
Righthaven has not yet responded to that charge.
In Monday’s filing in South Carolina federal court, Kincannon again complained Righthaven has been filing dubious lawsuits based on fraudulent copyright assignments and has been running an "extortion" scheme in which defendants are coerced into settling with threats of $150,000 in statutory damages and website domain name seizures.
Righthaven’s "sole purpose is to separate other people from their money," Kincannon complained in Monday’s filing.
"The lies worked for a while, but now the jig is up. And for all Righthaven’s claims of a new and innovative business model (protecting copyrights), the reality is that Righthaven is just a gang of con artists, and bad ones at that," his filing said.
Kincannon also offered a new theory about Righthaven’s standard lawsuit website domain name seizure demand, which has been thrown out of court by one of the Nevada federal judges.
Kincannon theorized that Righthaven never intended to follow through on these demands since they would have dragged powerful domain name registrars into its cases.
Righthaven recognized it wouldn’t be able to collect judgments against some defendants on due process grounds, so it threw in the domain name demands in its lawsuits to coerce defendants into settling, Kincannon argued.
"A defendant convinced that Righthaven’s money judgment would be unenforceable back home wouldn’t be able to argue `due process’ to its domain registrar. A Florida judge could ignore a Nevada judgment and refuse to enforce it, but a defendant could reasonably expect GoDaddy would comply with an otherwise-proper judgment ordering it to do something. From a purely tactical standpoint, the website demand was a great idea and provided great leverage — it just had the small problem of being completely illegal. It is hard to see how a use of process could be any more unauthorized or more obviously aimed at an illegitimate collateral objective," Kincannon argued in Monday’s filing.
"In truth, Righthaven never had the slightest intention of actually getting a website-seizure order. The last thing Righthaven wanted to do was pick a fight with GoDaddy, a major company with plenty of lawyers at its disposal — and plenty of money to pay them — who would not take kindly to Righthaven’s attempts to illegally adversely possess its customers’ websites," his filing said.
"GoDaddy buys Super Bowl ads by the bushel. Had Righthaven picked a fight with GoDaddy — much less all the other registrars named in its complaints — Righthaven would not have survived infancy," Kincannon argued.
"So we are left with a plaintiff secretly operating as a proxy for a third (newspaper) party, filing lawsuits over damages to property it does not own, and including demands in its complaints that are illegal and that it has no intention of actually pursuing simply to obtain improper leverage over its targets. Not only is that abuse of process, it is a textbook-worthy example of it," Kincannon argued.
Righthaven has not yet responded to these assertions.