Righthaven Archives
A judge questioned attorneys Tuesday about who — if anyone — was harmed when a Kentucky man posted without authorization a Las Vegas newspaper column on a sports website message board.
U.S. District Judge Philip Pro is weighing whether to dismiss on fair use grounds a copyright infringement lawsuit filed by Righthaven LLC against the man, Wayne Hoehn.
Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post that, since March 2010, has filed at least 265 lawsuits against website operators, bloggers and message board posters like Hoehn.
The Jan. 11 lawsuit against Hoehn was unusual for Righthaven in that it targeted him personally and did not name as a defendant the website where Hoehn admittedly posted the column.
The column was by then-Las Vegas Review-Journal Publisher Sherman Frederick. In it, Frederick complained about public employee pensions.
The website, madjacksports.com, had previously been sued and settled with Righthaven and it likely won’t be sued again as it’s posted a notice for receipt of takedown requests in compliance with the Digital Millennium Copyright Act.
Attorneys for Hoehn have asked Pro to throw the case out of court on fair use grounds and also filed a motion for dismissal saying that, under its newly-disclosed lawsuit contract with the Review-Journal, Righthaven doesn’t have standing to sue.
During a hearing Tuesday, Pro focused on the fair use issue, as Righthaven hasn’t yet responded to the motion for dismissal based on the standing issue.
Las Vegas attorney J. Malcolm DeVoy IV of Randazza Legal Group, representing Hoehn, told Pro that because Righthaven uses the copyrighted column at issue only for lawsuits, it can show no harm to the market for the copyright, and that’s one reason Hoehn’s post was protected by the fair use doctrine.
“The only way Righthaven uses these copyrights is not for a newspaper or online, but in these courtrooms,” DeVoy said.
DeVoy noted another Las Vegas federal judge, James Mahan, had dismissed another Righthaven case on fair use grounds largely because of Righthaven’s use of the copyright for litigation purposes as opposed to the Review-Journal’s initial use of the copyrighted material as a news story. That case involved the Portland, Ore., Center for Intercultural Organizing.
Even if the Review-Journal was the plaintiff in the suit against Hoehn, Hoehn’s post of the story would have been protected by fair use, as Hoehn used it to encourage public discussion and debate, DeVoy said.
“He’s using it in a discussion forum vs. the way the newspaper uses it to distribute facts and information,” DeVoy said.
Pro asked several questions about what the actual market for the copyright is.
“There is no market. Righthaven owns the copyright. It is an unlawful market solely for the purpose of lawsuits,” DeVoy said.
Hoehn used the story “in a market for discussion,” which did not put him in competition with the Review-Journal or Righthaven, DeVoy said.
Pro said it was clear that Hoehn received no financial gain by posting the column in a discussion forum and asked Shawn Mangano, a Las Vegas attorney representing Righthaven, “What’s the harm here?”
And Pro indicated Righthaven’s ownership of the copyright — as opposed to the Review-Journal’s ownership — has complicated the analysis of harm.
“You’re not having anybody access your website (to see copyrighted material Righthaven owns),” Pro said. “You’re not commercially selling it. How does Righthaven suffer any conceivable harm as the owner of the copyright?”
Mangano said the column presenting an opinion with some creativity is deserving of greater copyright protection than a news story offering factual information. The story in the Intercultural Organizing case was factual and deserving of less copyright protection than a creative piece, Mahan ruled.
Mangano said the Review-Journal was harmed by Hoehn’s post of Frederick’s column because people reading the column on the madjacksports.com site would have no reason to go to the Review-Journal website to read the same column.
He noted Hoehn could have posted a short summary and linked to the R-J website but didn’t do so.
And with Righthaven having the right to sue for infringements initially harming the Review-Journal, Righthaven is now suing over the harm to the Review-Journal, Mangano said.
“At the time of the infringement, the Review-Journal was the publisher of the work and the defendant was accused of taking it 100 percent without authorization,” Mangano said. “That’s your act of infringement.”
Mangano said that under case law, copyright holders can sustain financial damages from infringement as well as damages to their goodwill and reputations.
“Where you have 100 percent unauthorized replication of an article, what you’re essentially doing is taking that content and you are superseding the original market source. Mr. Hoehn has said his purpose in replicating this piece was for education, comment and criticism. This is the exact same purpose the work would be published on the R-J’s website,” Mangano said.
DeVoy, however, retorted that Hoehn was using the column in a constitutionally-protected exercise of free speech to stimulate discussion about a matter of public interest.
His use was no different than if DeVoy had read the column aloud to colleagues at law school to stimulate debate, DeVoy said.
“Even Righthaven wouldn’t sue me for that,” DeVoy said.
Pro didn’t say when he would rule on the fair use issue but indicated he’s going to study the motion for dismissal — based on the standing issue — and Righthaven’s upcoming opposition to that motion.
In another Righthaven case, Mahan on Tuesday refused to dismiss a Righthaven lawsuit over the Review-Journal “Vdara death ray” graphic, giving Righthaven an initial boost in the case.
But defendants Azkar Choudhry and Pak.org also received a boost when Mahan refused to dismiss their counterclaim against Righthaven.
After he was sued by Righthaven over the graphic, an attorney for Choudhry fired back in court papers, saying that for technical reasons the image was never actually posted on his website and that Righthaven had actually sued over an “inline link” to the image on another website.
Noting he’s not an expert in source-code related to linking, Mahan said factual issues need to be resolved in the case, making it ineligible for dismissal on legal arguments alone.
Mahan also found there were disputed factual issues about whether the lawsuit could be disposed of on fair use grounds — for instance, whether Choudhry’s website is commercial or nonprofit.
Mahan also found that while the graphic “is an information work, it also displays elements of creativity, for example the title (death ray).”
Reiterating a point from his Intercultural Organizing ruling, Mahan wrote Tuesday that Righthaven can’t show market harm for the copyright.
“Because Righthaven cannot claim the Las Vegas Review-Journal’s market as its own and is not operating as a traditional newspaper, Righthaven has failed to show that there has been any harm to the value of the copyright,” Mahan wrote.
But he added that factor alone was not enough to rule definitively on fair use in the case at this point.
Also in his order Tuesday, Mahan became at least the second federal judge to reject Righthaven’s standard lawsuit demand that the defendant’s domain name be forfeited and transferred to Righthaven.
Everyone involved agrees such a remedy is not authorized by the Copyright Act, though Righthaven maintains it’s available as a matter of equity.
Mahan wrote Tuesday: “The court finds that Righthaven’s request for such relief fails as a matter of law.”
In seeking to have the counterclaim dismissed, Righthaven argued it was redundant as it covered the same issues in its lawsuit.
Mahan disagreed Tuesday.
“Defendants seek a declaration that would be substantially more detailed than a judgment on the claim of copyright infringement in the complaint. For example, defendants seek a declaration that the alleged infringement was actually an ‘inline link,’ which would not necessarily be encompassed in a general judgment in defendant’s favor,” Mahan wrote.
Mahan’s ruling means the suit will continue unless it’s settled.
Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law in California and a frequent Righthaven commentator, said the ruling overall was good for Choudhry.
“It reinforces three points that have been emerging from other rulings:
“1) Righthaven’s demand for the defendant’s domain name is lawless.
“2) The fourth factor of the fair use defense (the market effect) weighs in favor of the defense as a matter of law. The fourth factor is often viewed as the most important of the fair use factors. If it weighs against Righthaven in every case as a matter of law, Righthaven will have a tough time winning any of its cases.
“3) The defendant’s counterclaims are independent of Righthaven’s claims. Thus, even if Righthaven dismisses its lawsuit, the defendant still has ways to go on the offensive,” Goldman said.
Separately, Randazza Legal Group filed a motion in another Righthaven case asking that the court award it $3,815 in fees and expenses for its representation of defendant Michael Leon.
This appears to be the first time any of the federal judges hearing Righthaven cases have been asked to order Righthaven to pay the other side’s fees, though the same thing is likely to happen in Righthaven’s cases against blogger Brian D. Hill, which was dropped, and against the Democratic Underground, which is likely to win at least a fair use dismissal.
DeVoy represented Leon during an April 20 hearing in which U.S. District Judge Gloria Navarro dismissed the suit against him because he had not been served by the deadline.
In his motion for attorney’s fees, DeVoy seeks payment for four hours of work for Leon, and nine to 10 hours he spent trying to resolve the attorney’s fees issues with Righthaven and preparing the motion for fees filed Tuesday. Efforts to resolve the fee issue out of court were not successful, DeVoy said in his filing.
Also, U.S. Magistrate Judge George Foley Jr. on Tuesday set a June 2 hearing on the latest discovery dispute between Righthaven and the Democratic Underground.
Righthaven’s suit against the Democratic Underground is over the posting of four paragraphs of a 34-paragraph Review-Journal story by a message-board poster — a post that linked back to the Review-Journal website.
Based on case law in the Righthaven litigation, the post likely was protected by fair use and now the Democratic Underground is countersuing Righthaven and Review-Journal owner Stephens Media LLC.
That countersuit resulted in the unsealing of the Righthaven-Stephens Media lawsuit contract and resulting charges by the Democratic Underground that Righthaven’s Review-Journal lawsuits are based on “sham” copyright transfers.
Mahan, in another case, has said this agreement appears to show Righthaven doesn’t have the right to sue — arguments Righthaven disputes.
In their latest court filing, attorneys for the Democratic Underground with the online freedom of speech group the Electronic Frontier Foundation said last week they’re trying to show that the driving force behind the lawsuits is Stephens Media and that Righthaven is merely its agent.
Righthaven is half owned by an affiliate of Stephens Media.
“With this motion, defendants ask the court to compel documents that are directly relevant to Righthaven’s standing. This includes documents about the formation of Righthaven and the assignment of the copyright at issue,” the attorneys said in a filing charging that Righthaven and Stephens Media have failed to turn over these documents during the discovery process.
The documents are relevant to the Democratic Underground case and “to the hundreds of other actions Righthaven has filed,” the Democratic Underground attorneys said.
They said the newly unsealed Strategic Alliance Agreement between Righthaven and Stephens Media provides “substantial evidence” that the copyrights assigned by Stephens Media to Righthaven are invalid; that Righthaven can suffer no harm by alleged infringements under a fair use analysis, because it has no real rights in the copyrights; that “Stephens Media is the real party in interest, engaging Righthaven as its agent to prosecute this action;” and that “Stephens Media retains the right to sue Democratic Underground under the agreement, thereby giving rise to a live and genuine controversy with Stephens Media.”
“Nonetheless, Stephens Media and Righthaven continue to assert that the assignment is valid, that the relationship between them is not merely an agency relationship, and that Righthaven has sufficient control and ownership to constitute standing under the Copyright Act,” the filing said.
“Therefore, Democratic Underground has a right to discovery of all documents that might bear on this supposed relationship, such as other communications about the assignment, communications leading to the formation of the Strategic Alliance Agreement and negotiation of its terms, communications regarding the effectuation of (copyright) assignment for the news article or the relationship between Stephens Media and Righthaven, and so on,” the filing said.
“A core issue in this action, and the hundreds of others filed by Righthaven, is whether or not the purported assignment to Righthaven is a sham and champertous. Democratic Underground believes that Righthaven was created as a tool to bring lawsuits on Stephens Media’s behalf, without Stephens Media taking responsibility for them. Defendants assert that Stephens Media intentionally designed the relationship with Righthaven to skirt the copyright laws, create a patina of legitimacy for Righthaven, while providing nothing of value to Righthaven other than the right to sue people,” the filing said.
Stephens Media and Righthaven haven’t yet responded to these assertions.