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24 July 2011
2:13 p.m.
Righthaven Archives
Newspaper copyright infringement lawsuit filer Righthaven LLC of Las Vegas is arguing it shouldn’t have to pay a defendant’s legal fees — even after the lawsuit at issue was thrown out of court on multiple grounds.
U.S. District Court Judge Philip Pro in Las Vegas on June 20 found Kentucky resident Wayne Hoehn was protected by fair use in posting an entire Las Vegas Review-Journal column on a sports website discussion board; and that Righthaven didn’t have standing to sue over the post. Righthaven is appealing.
Hoehn’s attorneys, in the meantime, are seeking recovery of their $34,000 in fees, saying Hoehn stood up to what they called Righthaven’s bullying lawsuit tactics and won a victory for fair use and free speech.
In his fair use ruling, Pro noted the noncommercial nature of Hoehn’s post and that it involved efforts to stimulate an online political discussion. Righthaven, however, has likened his conduct to someone stealing from authors by photocopying their books.
On the attorney’s fee issue, Righthaven argued in court papers Saturday that since Pro dismissed the suit on grounds that Righthaven lacked standing to sue, Pro now lacks subject matter jurisdiction in the case.
"Without authority to adjudicate the merits or any other matter based on a want of jurisdiction, the court similarly cannot award defendant attorney’s fees and costs as requested in his motion," said the filing by a Righthaven outside attorney, Shawn Mangano.
Mangano also argued that after finding Righthaven lacked standing to sue, Pro didn’t have the authority to issue a fair use ruling.
"The court erred in granting defendant’s motion for summary judgment on fair use grounds after determining that it lacked subject matter over the case. While this error may appear inconsequential at first, it is not," Righthaven’s filing said. "The court cannot rely on its fair use decision in defendant’s favor in order to confer 'prevailing party' status for the recovery of attorney’s fees and costs."
Righthaven's filing also included a threat to sue Hoehn, a decorated Vietnam War veteran, again.
"While defendant may have obtained a procedurally technical victory, he has not won the war should Righthaven elect to re-file its complaint against him tomorrow. Nothing prohibits the company for doing so," Righthaven said in its brief.
Attorneys for Hoehn with Randazza Legal Group in Las Vegas, in an apparent preemptive strike, filed their own brief on Friday to supplement the record with evidence that Righthaven has been misleading all of the Nevada federal judges about its right to sue over Review-Journal material and that the company deliberately hid the role of R-J owner Stephens Media LLC in its lawsuit campaign.
Their filing for Hoehn noted that on July 14, U.S. District Judge Roger Hunt sanctioned Righthaven with a $5,000 fine for its “intentional misrepresentations” and “concerted effort to hide Stephens Media’s role in this litigation,” which “demonstrated Righthaven’s bad faith, wasted judicial resources and needlessly increased the costs of litigation.”
"The evidence regarding the misrepresentations made by Righthaven regarding its standing go to the heart of this court’s order dismissing the (Hoehn) action, and reveal Righthaven’s lack of credulity in bringing its claims against Hoehn — an important factor for this court in assessing an award of attorney’s fees," their filing said.
Hoehn’s attorneys also complained that while Hunt ordered Righthaven to file in each of its active cases his order finding Righthaven lacked standing to sue the political website the Democratic Underground and a transcript of his sanctions hearing, "Righthaven ostensibly has no intent to comply with Judge Hunt’s order."
So Hoehn’s attorneys filed the transcript with their brief.
Righthaven’s battles over attorney’s fees are likely to intensify as attorneys for prevailing defendant Thomas DiBiase have filed their own fee motion for $119,457, Randazza Legal Group won $3,815 in fees representing former defendant Michael Leon and a demand for hundreds of thousands of dollars is likely in the case of the Democratic Underground in which Righthaven has been dismissed as a plaintiff for lack of standing.
In other Righthaven developments last week:
• U.S. District Judge James Mahan in Las Vegas dismissed a Righthaven lawsuit against Garry Newman, who is a resident of Great Britain and is associated with facepunch.com.
In dismissing the suit over an alleged infringement of an R-J Vdara hotel "death ray" story, Mahan wrote in his ruling that Righthaven had failed to respond by the deadline to Newman’s dismissal motion.
In that motion, attorneys for Newman said the U.S. court lacked jurisdiction over the British man as his website is not targeted towards Nevadans and that the post at issue was made not by Newman but by a user of his website.
They also said that Righthaven didn’t send a takedown letter prior to filing suit and that since it uses copyrights only to profit from lawsuits, "Righthaven cannot claim with a straight face that it has been harmed."
Righthaven responded to Mahan’s dismissal order with an emergency motion for reconsideration, saying it had filed an amended complaint prior to Mahan dismissing the suit.
"Here, the court granted defendant’s (dismissal) motion under the assumption that a timely response had not been filed. This was not the case," Righthaven said in Friday’s emergency motion.
Mahan has not yet acted on that motion.
• For a second time, Mahan refused to dismiss a Righthaven lawsuit against Azkar Choudhry and his Pak.org website. This suit involves a graphic that accompanied the R-J Vdara death ray story.
Attorneys for Pak.org argued the case should be dismissed because the image was never hosted by the Pak.org website.
They said the lawsuit involved an automated link to the graphic on another website and that the link was provided by an RSS (Really Simple Syndication) feed that Choudhry didn’t control.
Choudhry, of Houston, said that at the time of the alleged infringement last year he was unaware his site was linking to the Vdara graphic via the RSS link, as he doesn’t screen RSS feeds.
Choudhry also said he had never heard of the Vdara hotel, the Review-Journal or Righthaven until he was contacted in December by the Las Vegas Sun, a sister publication to VEGAS INC, and was informed that he was being sued by Righthaven.
Mahan, however, ruled last week that Righthaven had posed several legitimate questions that need to be explored including:
• What editorial control did the defendants have over the content that appeared on their website?
• What interaction did the alleged RSS feed have with the website?
Mahan has set a hearing for this week in another Righthaven lawsuit against the Pahrump Life blog, and he’s been threatening to dismiss that lawsuit based on Righthaven’s lack of standing under its original lawsuit contract with Stephens Media.
If the Pahrump Life lawsuit is dismissed, Mahan is likely to dismiss other Righthaven cases he is handling – including the Pak.org case – based on Righthaven’s lack of standing under the first version of its Stephens Media lawsuit pact.
Righthaven, which also sues over Denver Post material, has filed 275 infringement lawsuits over newspaper content since March 2010.
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I would think that because of Judge Hunt's and Judge Pro's ruling on standing, and the arguments they gave, that all of Righthaven's cases filed before the restated SAA will be thrown out on standing. Worse, it might be possible that all of those defendants can file counter-claims that name Stephens Media based on Hunt.
I still think Mahan is making some serious errors in his logic. This time, why should he want to explore the other questions if he winds up dismissing on standing? He should never reach those other issues to begin with. This is the same criticism I have with Pro's ruling on fair use.
If I were a defendant right now, I would consider filing a counter-claim against SM like Democratic Underground did before any more dismissals take place, forcing a ruling that could keep SM in the game as the party who will be responsible for attorney's fees. Hunt threw the door wide open for that.
Mangano is admitting that Righthaven lacks standing in these cases by claiming the Judge lack's jurisdiction to rule on other aspects of the case since they do not have standing. Mangano is painting himself into a corner.
Tomorrow is Righthaven's deadline to pay the Randeeza Group their legal fees. Righthaven has a habit of missing deadlines. If they miss this one the Randeeza Group will throw the book at them.
Randazza not Randeeza. My apologies.
Time to put liens on some Righthaven offices.
I haven't commented on this since last year at this time. At which time I mentioned that champerty and maintenence - which most states have banned - is alive and well in Nevada. :)
It has now been replaced in most states as 'abuse of law'. Either way Steve Gibson didn't check that detail.
My other argument this time last year was when Mr Sgt Rock kept repeating over and over again that "can I come to your house? I need a few things?" Meaning that the defendants and millions of others are all thieves and if they could be thieves, then he demands compensation. *'rubbing my hands together at the thought of millions of settlements*
My argument then was.. "Sure, you can come to my house and take a few things. How about my 8 year old TV set? " These kind everyday people did not mean to be thieves. But so be it.
To bad it has come to light that you have no damages Mr. Gibson. But you have damaged your defendants. Oh yes. You have. We all know it. Pay the poor victims back their 8 year old TV sets. Tell Mr. Frederick to ask the billionaires in Alabama called the Stephens Media 'family' to eke out a refund for the victims and put food back on the table. There is no greater shame than the rich preying on the poor.
I was 77 then, now I'm 78. I have a message to Mr/Atty Steve Gibson. Don't wait until you are my age to ask forgiveness. Attorney's at the Gibson [law firm], you are taking the food off of families tables. You know that. It's not to late my friends.
I also asked Mr. Sgt Rock how it felt to be the most hated man on the inernet right now. I think he replied again about 'can I come to your house, I need a few things'. Yes, you can take what you need. 'Nuf said' I think is the quote.
Anyway, on a brighter note. Steve Green has been valuable asset and shows the value of reporters and the newspaper industry. Irony and poetic justice, don't you think Mr Frederick? What an asset to this whole mess. Wouldn't it be beauteous if we saw Steve Green awarded for this diligence and hard work. He even went as far as to inform the defendants so they weren't smacked at the doorstop with a lawsuit. At least they knew it was coming. Bravo, Mr. Green.
Shout out to SGT ROCK. Where are you SGT ROCK?
Archibald and Rock if you have crawled out from under it.
If we are going to compare real property rights with copyrights then fair use would be equivalent to an easement like a sidewalk. Easements allow pubic usage without the property owners permission.
You can also walk up to someones front door and ring the doorbell and it is not trespassing unless there is a no trespassing sign.
What Righthaven has done is analogous to prosecuting someone for walking on the sidewalk or ringing the doorbell without any kind of warning against trespassing.
The penalties they ask for is analogous to suing someone for the entire value of the property for damaging a single blade of grass.
If anything has been damaged it has been all copyright holders by Righthaven and Stephen Media's irresponsibility.
See you next year my friends.
Mr Bingham,
It makes no never mind. The reputations are ruined in the court of public opinion and the eyes of the court.
Mr Steve Gibson is ruined and his staff unfortunately.
No matter the law.
Archibald
Archibald
I agree with you completely. Righthaven is finished.
Judge Hunt could not have more clear in ordering a transcript of his sanctions hearing be included in future Righthaven proceedings to all other court jurisdictions.
So, Mangano and Righthaven believe they can just ignore Judge Hunt.
Am I missing something?
From the transcript of the sanctions hearing:
MR. MANGANO: I think that's the understanding. If there's no order, I'm to product the transcript, correct?
THE COURT: Yes. I think that a good suggestion , And that will be the order if it wasn't clear otherwise.
So Righthaven and Mangano get to thump their noses at a federal judge?
The defendants who settled either by coersion, lack of defense or settled prematurely with the fear of losing a website, should stop paying any fines levied since this will stop the income that Righthaven is using to file more lawsuits or to remain as viable business. The parties should file counterclaim suits for legal expense and libel. To prove libel, they have to prove loss of income. If they have to shut down their website-that is a loss of income in itself. They should get judgement on Righthaven indivitually and or be a party to "Class Action" since they have been uniformily and adversly affected.