Rulings against Righthaven seized upon by more defendants
25 June 2011
Righthaven ArchivesPast stories related to the Righthaven copyright lawsuit campaign
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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