Rulings against Righthaven seized upon by more defendants

Rulings by federal judges against copyright enforcer Righthaven LLC this month are now being used against Righthaven in lawsuits in Nevada, Colorado and South Carolina.

Las Vegas-based Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post that has hit alleged online infringers with 274 federal lawsuits in those states since March 2010.

U.S. District Judges Roger Hunt and Philip Pro have ruled Righthaven doesn’t have standing to sue over Las Vegas Review-Journal material — even under an amended lawsuit contract with R-J owner Stephens Media LLC — and have dismissed three Righthaven suits for that reason.

In one of the cases, Pro also found a Kentucky man was protected by the fair use doctrine in copyright law when he posted on a message board without authorization an entire Review-Journal column.

In another case that remains active against Stephens Media, Hunt is threatening to sanction Righthaven.

Hunt wrote in an order that he believes Righthaven made at least one “flagrant misrepresentation” for its failure to name Stephens Media as an interested party in its lawsuits over R-J material, that he believes Righthaven has made “multiple inaccurate and likely dishonest statements to the court” and that a Righthaven standing-to-sue claim is “flagrantly false — to the point that the claim is disingenuous, it not downright deceitful.”

All of this has caught the attention of attorneys around the country representing Righthaven defendants.

In a Las Vegas case, for instance, pitting Righthaven against news site NewsBlaze LLC, attorneys for Randazza Legal Group wrote in a filing last week: “Subject matter jurisdiction is an essential element to every lawsuit, and must be present for any court to hear a dispute. In this case, Righthaven does not have sufficient rights in the work putatively assigned to it by Stephens Media to bring — or maintain — its case against NewsBlaze.”

“As such, the court should dismiss Righthaven’s suit,” their filing said.

Attorney David Kerr in Fort Collins, Colo., who represents former North Carolina Righthaven defendant and autistic blogger Brian Hill, wrote in a court filing Friday that after Hunt criticized Righthaven for failing to disclose Stephens Media as an interested party, Righthaven started naming Denver Post owner MediaNews Group as an interested party in its suits over Post material.

“While such amendment is noteworthy,” it also may illustrate a “reckless indifference” to the law, Kerr argued in his filing.

In a Righthaven lawsuit in South Carolina against Dana Eiser, who heads a local Tea Party group, Eiser’s attorneys wrote in a court filing Thursday that Righthaven’s claim it has standing to sue Eiser over a Denver Post column are a “misrepresentation and a fraud on the court.”

“Righthaven’s claims in this regard have been forcefully rejected by Judge Hunt of the District of Nevada,” an Eiser court filing said.

Noting the rulings by Hunt and Pro on Righthaven’s lack of standing, Eiser’s attorneys wrote: “Every judge to have thus far issued a final ruling on the Righthaven copyright assignments has found them to be illusory transactions.”

In Righthaven’s Colorado lawsuit against Hill, in the meantime, Kerr’s filing was made as the parties battle over whether Righthaven should pay Hill’s attorney’s fees.

In this legal tug of war, Righthaven says it dismissed its suit against Hill over a Denver Post photo after learning he has disabilities and after Hill’s attorneys refused to settle the case so they could prolong it and attack Righthaven’s business model.

In his filing Friday, Kerr reiterated charges that it was Righthaven that had insisted on unreasonable settlement terms including a fabricated press release and unreasonable gag orders.

“Righthaven chose to pursue their for-profit litigation business before this court under dubious claims of standing. Righthaven choose to maintain the case against Mr. Hill even after counsel for plaintiff was informed he was autistic, chronically ill and destitute,” Kerr’s filing said.

“Righthaven chose to conduct itself in a manner that merits public and judicial scrutiny,” Kerr’s filing said, adding Righthaven should pay attorney’s fees because it prosecuted the case against Hill in bad faith.

“Righthaven’s conduct, driven by its for-profit litigation model, was frivolous, objectively unreasonable and should be affirmatively deterred by this court. Righthaven’s actions indicate a heavy-handed pattern of vexatious, wanton and oppressive litigation behavior contrary to the purposes of the Copyright Act, the judicial process, and whose own obstinate behavior resulted in a great multiplication of the proceedings,” the filing said.

“Certainly, Righthaven’s entire course of conduct before this court can be described as cavalier, meant to distract, misdirect and ultimately mislead this court, rendering this entire proceeding unwarranted,” charged Kerr.

Kerr has complained the suit was frivolous as Hill found a Denver Post photo at issue on an unrelated website and had no idea it came from the Denver Post, had no idea that it was even taken in Denver and was unaware that it was subject to copyright protection.

He’s argued that compounding the problem, Righthaven tried to coerce Hill into settling by threatening to seize his website domain name — a threat he says is not authorized by the Copyright Act — and that a Righthaven attorney threatened to garnish Hill’s Social Security Disability Insurance income at the rate of $50 per month for 10 years.

As a symbol of aggressive new TSA pat-downs of airline passengers, the photo at issue went viral on the Internet after it was published in the Post and distributed to media outlets by The Associated Press in November.

After Hill’s disabilities became known, the Post and Righthaven suffered a series of public relations debacles including national news coverage of the suit, the international press freedom group Reporters Without Borders calling on the Post to drop the suit and the judge handling the case criticizing Righthaven’s business model. Kerr’s filing also criticized Righthaven’s conduct in another case in Las Vegas pending before U.S. District Judge Gloria Navarro.

In that case, a Righthaven lawsuit against veterans advocate Michael Leon of Fitchburg, Wisc., was dismissed because he was not served in time and Righthaven dropped the complaint against codefendant Denise Nichols, a Denver-area retired military nurse struggling with health issues, after she was served with the wrong version of the suit that didn’t even name her.

With Righthaven refusing to pay Nichols’ $1,500-$1,600 in legal fees and charging Nichols is seeking to extract “blood money” to which she is not entitled, Kerr chimed in Friday: “Consistent with their for-profit business model, and contrary to Judge Navarro’s apparent proposal — namely that those defendants choose whether the dismissal would be with or without prejudice and seek attorney’s fees — it appears Righthaven instead sought to avoid the possibility of such an award and simply ‘cut its losses and ran out of court.’”

Righthaven hasn’t responded to these latest filings by defense attorneys. But the company and Stephens Media say the no-warning lawsuits are needed to combat massive online misappropriation of newspaper industry material including stories, columns, editorials, photos and illustrations. The no-warning lawsuit policy of Righthaven is frequently criticized, but Righthaven’s position is that takedown requests aren’t effective and it points out in lawsuits that alleged infringers didn’t seek or obtain permission from the Review-Journal and the Denver Post before using their material.

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  1. "Righthaven chose to pursue their for-profit litigation business before this court under dubious claims of standing. Righthaven choose to maintain the case against Mr. Hill even after counsel for plaintiff was informed he was autistic, chronically ill and destitute," Kerr's filing said.

    The SAA with Stephens Media has language in Paragrah 3, section 3 that gives SM the right to tell Righthaven to not pursue litigation against someone who "...is a charitable organization, is likely without fmancial resources, is affiliated with Stephens Media directly or indirectly, is a present or likely future valued business relationship of Stephens Media or otherwise would be a Person that, if the subject of an Infringement Action, would result in an adverse result to Stephens Media."

    There is reason to believe that the agreement between RH and MediaNews is similar to that between RH and SM. I think that people such as Hill would have grounds to bring SM and MN into the action based on such language saying they failed to exercise their option to prevent an inappropriate action as defined in their own agreements. The possibility was clearly foreseen, and apparently ignored in practice.

  2. Righthaven is all the evils that Greedy Lawyers can be. Anything to get a quick buck. These folks should be picked up and hung from trees so that their Lawyers Pals would see what happens when they become too greedy. It's really time for Americans to take back America from these crooks.

  3. boftx

    Excellent point. It is amazing to me that Righthaven has sued people who meet every one of the criteria listed in the SAA but as far as we know never exercised that right. As you mention that could be a reason to bring News Media and Stephens Media into this. This is important because Righthaven was set up to insulate these news conglomerates from liabilities. By naming them as co-defendants in lawsuits it will show they were sorely mistaken when they set up Righthaven as a front company.

  4. Its a feeding frenzy for lawyers. There is Righthaven, Stephens Media, and Media News Group money to be had. Bon appetit.

  5. Short term or long term profits have now gone out of Righthaven's business plan with these actions.

    When there is no profit motive, business ceases to exist. You will see this all coming to an end shortly.

    The past defendants will now be the ones with the profit motives at a great cost to Righthaven and possibly Stephens Media.

    Stephens Media has already lost some advertisers over all of this and if it continues, there will be more.