Righthaven pressing for right to seize defendants’ websites, computers

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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