Righthaven pressing for right to seize defendants’ websites, computers
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11 June 2011
12:02 p.m.
Righthaven Archives
Newspaper copyright enforcer Righthaven LLC continues to argue it can seize the websites and computers of copyright infringers – a claim widely criticized as a bullying tactic aimed at coercing lawsuit defendants into settlements.
Las Vegas-based Righthaven LLC enforces copyrights for the Las Vegas Review-Journal and the Denver Post.
It has filed 274 generally no-warning infringement lawsuits since March 2010 against website operators, bloggers and message-board posters throughout North America and Europe.
Its lawsuit campaign appears to be on hold as federal judges in Denver and Las Vegas consider whether Righthaven has standing to sue. Defense attorneys say that right is reserved for those who create and use copyright-protected content for news and artistic purposes.
Righthaven insists the copyrights it obtains from the Review-Journal and the Post can be used for lawsuits.
Nevada federal judges have thrown out two Righthaven lawsuits on fair use grounds and Righthaven is appealing both rulings.
Righthaven sustained another setback on April 15 when Roger Hunt, chief United States judge for Nevada, ruled Righthaven can’t demand that third-party website domain-name registrars lock defendants’ domain names and transfer them to Righthaven.
Hunt sided with defendant Thomas DiBiase on that issue, citing case law that the remedies for copyright infringements are only those prescribed by Congress.
“Congress has never expressly granted plaintiffs in copyright infringement cases the right to seize control over the defendant’s website domain. Therefore, the court finds that Righthaven’s request for such relief fails as a matter of law and is dismissed,” Hunt wrote in his ruling
Even after that ruling, Righthaven continued to demand in new lawsuits that the courts “order the surrender to Righthaven of all hardware, software, electronic media and domains, including the domain used to store, disseminate and display the unauthorized versions of any and all copyrighted work.”
This caused critics to complain Righthaven was trying to violate defendants’ First Amendment rights to free speech.
Critics said the domain-name demand and statutory damage threats of $150,000 were used to induce defendants into settling frivolous copyright claims for a few thousand dollars.
Review-Journal owner Stephens Media LLC, however, maintains the lawsuits are not frivolous and are targeting a "parisitic" business model in which infringing website operators openly steal content from newspapers
Righthaven has conceded the Copyright Act doesn’t provide for domain-name seizures. But in two court filings this week, it continued to assert its domain-name demand is proper.
"DiBiase contends that a decision in this case supports that Righthaven is not entitled to such relief under the Copyright Act. While this may be true, it has not been decided that Righthaven is precluded from seeking such relief as a form of post-judgment enforcement efforts" under the Federal Rules of Civil Procedure, Righthaven attorney Shawn Mangano wrote in a court filing in that case involving a Review-Journal story. "While DiBiase may have succeeded in striking this remedy from Righthaven’s complaint, he has not fully and finally precluded Righthaven’s ability to seek surrender of the website domain should he be unable to satisfy a judgment entered against him in this action."
In another case, involving North Carolina blogger Brian D. Hill and a Denver Post TSA pat-down photo, Mangano argued that a ruling in a 1994 copyright lawsuit supports that position.
That case arose when the Internet was in its infancy and few people had heard of an Internet "domain name."
In the case from Beaumont, Texas, an individual named Jimmy Nugent was accused of copyright infringement for posting on an electronic bulletin board software owned by Central Point Software Inc.
A judge ruled in favor of the plaintiff that under the Copyright Act, the court could order the defendant to surrender computer hardware and software to the plaintiff.
The judge noted the Copyright Act provides for "the destruction or other reasonable disposition of all copies found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies may be reproduced."
In Righthaven’s lawsuit against Hill, Mangano argued this ruling shows Hill’s attorneys are wrong to assert this domain-name demand against Hill "was brought with an improper motive" or was so meritless that it justifies their request to be awarded fees for representing Hill.
After suing Hill, Righthaven dropped the lawsuit after learning Hill had disabilities and settlement talks failed.
Mangano in his filing this week disputed allegations that Righthaven, in trying to settle the suit, was trying to get Hill to sign off on a fabricated press release.
Mangano wrote that Righthaven actually was trying to get Hill to quit making "actionable" defamatory negative comments about Righthaven and remove such comments from websites.
"This request was not to stifle public criticism or to require the defendant to relinquish his right to free speech, which does not cover his actionable statements," Mangano wrote in his filing.
Mangano added that Righthaven shouldn’t have to pay Hill’s attorney’s fees as Righthaven had a strong copyright claim against Hill and acted reasonably in dropping it after learning of Hill’s disabilities.
This is disputed by attorneys for Hill, who say he didn’t infringe on anyone’s copyright as he found the photo at issue on a website other than the Post website after the image went viral on the Internet. Hill had no idea the photo was subject to copyright protection, that it originated with the Post or that it was even taken in Denver, his attorneys say.
Evidence in several Righthaven/Denver Post lawsuits suggests the November 2010 photo of a TSA agent patting down a passenger was distributed to media outlets internationally by The Associated Press and that as it went viral on the Internet, many Righthaven defendants thought the photo was taken in San Francisco as suggested by the parody website deadseriousnews.com.
Deadseriousnews.com, which continued Saturday to display the Denver Post photo that Righthaven claims to own, hasn’t been sued by Righthaven. It’s unknown whether Righthaven or the Denver Post have asked or demanded that deadseriousnews.com remove the photo.
Hill’s attorneys also say that even after learning he had autism and other disabilities, an attorney for Righthaven initially demanded he pay $6,000 to settle the lawsuit – 75 percent of his yearly Social Security disability income. Hill’s attorneys say that when Hill balked at this, Righthaven threatened to garnish his disability income at the rate of $50 per month for 10 years.
Mangano, however, insists Righthaven would have settled for $1 and Hill’s agreement to stop defaming the copyright enforcer.
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Discussion 11 comments
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This is fair -- as long as Righthaven, Stephens Media, and the Denver Post promise not to complain when, if they lose, they are willing to turn over the law licenses of their counsel and the printing presses of the newspapers.
They can't run a paper, so they went into the sue business model.
Leric, my thoughts exactly. Mangano's interpretation of the law is a stretch and now, there is new precedent to say so. It's in his backyard.
The EFF or another lawyer counter-suing Righthaven should ask the judge to force Righthaven to turn over the copyrights to the works they "own". This would put Righthaven in the awkward position of explaining why computers and domain names should be seized but copyrights should not be. It would also put the Denver Post and LVRJ in a situation where they could lose the copyrights to their works.
"The judge noted the Copyright Act provides for 'the destruction or other reasonable disposition of all copies found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies may be reproduced.'"
Way back then many aspects of not only copyright law but theft in general were in dispute when it came to the Internet. In one case that I heard of, someone who gained unauthorized access to a computer and downloaded files was held not to have committed a crime until the contents of those files had been physically printed on paper.
In this instance, it seems to me that arguing that computers should be surrendered because they were used to produce an infringement is like arguing a tape recorder should be seized because it could be used to create a master tape. The law seems to make a distinction between items that constitute an infringement in themselves as opposed to items that do not.
Deletion of the infringing files seems well within reason and the intent of the law, confiscation of hardware and software does not, in my opinion, because those items do not constitute an infringement in and by themselves.
Add on top of this that most sites are hosted on shared servers. It should be obvious that the companies providing such hosting service will not hand over the hardware and software but will instead merely delete the material if they and lawyers conclude that is the proper course of action.
Once again Righthaven is pushing a valid legal concept to extremes in an effort to intimidate defendants rather than filing solid suits.
It is a common practice to ask the court to seize the various specific assets of the defendent if the court rules in favor of the plantiff.
This is not ground breaking.
This is fairly standard stuff.
SgtRock,
Copyright law only provides for monetary awards, as well as the reasonable disposal of any infringing items as pointed out in the article. The demands by Righthaven go far beyond that.
Chapter 5 of the copyright law spells out the available remedies. ( http://www.copyright.gov/title17/92chap5... )
Show me where Righthaven can demand the surrender of computers or domains. Even the paragraph cited by the judge in the article left out the fact that it was intended to apply to phonorecords (and similar items.)
Again, the spirit of the law, the intent if you will, is that all infringing items be destroyed or otherwise disposed of. That does not include the machinery used to make them. You are saying that the photocopier used to produce a copy of a magazine page is as much an infringement as the copy itself.
That argument will never pass judicial review.
Most laws specified cash awards.
Courts have allowed attachment to other assets to ensure that the plantiff has something at the end of day.
What was disallowed earlier involved a 3rd party.
Again, it is not ground breaking stuff.
It is fairly common.
For the judge to disallow anything but cash would be ground breaking for the entire judical system.
Doubtful that the higher courts would support such a judge's decision.
SgtRock,
Read Title 17, Chapter 5 (I posted the link to it above.) It specifies exactly what damages may be claimed and under what circumstances. Part 506 of Chapter 5 allows for remedies under Title 18, part 2323 but that is *only* in cases involving criminal infringements and those are clearly defined.
No, Righthaven's demands for surrender of equipment and other assets is outside the bounds of Title 17 and should be thrown out by the courts.
The only confusing part about Title 17 is over what constitutes "fair use."
The article states in part:
"Hill's attorneys also say that even after learning he had autism and other disabilities, an attorney for Righthaven initially demanded he pay $6,000 to settle the lawsuit -- 75 percent of his yearly Social Security disability income. Hill's attorneys say that when Hill balked at this, Righthaven threatened to garnish his disability income at the rate of $50 per month for 10 years."
It is news to me that Social Security disability income can be garnished. Federal law specifically excludes Social Security income from attachment and execution. Making such threats knowing full well Social Security disability income is exempt from attachment and execution is illegal in itself.
uh-oh
That is what is so egregious with what Righthaven did to Brian Hill because they were making threats in direct violation of Federal Law. They also sought to force Brian to falsely admit publicly he had lied about what Righthaven had done. It was infact Brian that offered to settle for $1 but Righthaven is now making the claim it was them who offered the $1 settlement. They also demanded Brian remove every comment he had ever made and ask that all bloggers and news outlets including myself that we remove any article we had written about Brian Hills case and that Brian could never utter the name Righthaven again in any context without their permission, EVER.
It has come to light that this permanent gag order is standard for every person who has settled with Righthaven so people like Matt Drudge and Alex Jones may have agreed to never utter the name Righthaven in any context for the rest of their lives or face a $10,000 penalty.
This attack on Brian Hill's First Amendment Rights is what Brian found unacceptable.
Again, is anyone who's commenting here a defendant in any Righthaven case. Also, the issue of a "permanent gag order [regarding mentioning Righthaven in print or otherwise] is standard..." for all settling with Righthaven is simply not true.
S Stern
I know of several cases this is true. It may not be for all cases particularly some of the earlier cases. They may have started doing this after many Righthaven victims, including yourself, began publicly speaking out. This indicates they wanted to use the settlement process to silence victims.
Gag orders regarding settlements and particulars in a case is common but to impose lifelong gag orders that include speaking of the plaintiff generally is not common.
I'm surprised that defendants' attorneys let that through. It's been my experience that settlements generally preclude talking about the defendant's specific case and the settlement for that case, whether amount or otherwise.
S Stern
In the case of Brian Hill and his attorney David Kerr it was infact Righthaven who divulged the "confidential" aspects of the case when they filed a response to the court. They divulged parts of the case to make Brian Hill look like he had not been negotiating in good faith. As a result David Kerr had no choice but to present all the facts in the case to show the facts did not support Righthaven's assertions.
Also since there was no settlement reached in the case of Brian Hill they were not subject to any permanent gag order.