Online freedom group EFF seeks dismissal of more Righthaven/R-J lawsuits
5 May 2011
The Electronic Frontier Foundation (EFF) is stepping up its offensive against Las Vegas copyright enforcement company Righthaven LLC and has asked a judge to throw out of court Righthaven suits over Las Vegas Review-Journal material against defendants unrepresented by attorneys.
The EFF, an online freedom group based in San Francisco, is involved in representing some of the defendants in Righthaven copyright infringement lawsuits.
Its attorneys filed a dismissal motion Wednesday in the Righthaven suit against Thomas DiBiase, a former federal prosecutor who has a website about murder cases in which victims’ bodies haven’t been recovered.
Attorneys for DiBiase in contesting the suit say his post of a Review-Journal story about such a case was protected by fair use in that DiBiase’s nonprofit website performs a public good by providing information that helps police and prosecutors bring justice to victims and their families.
In their latest blast at Righthaven on Wednesday, EFF attorneys cited the newly-unsealed lawsuit contract between Review-Journal owner Stephens Media LLC and Righthaven.
They said this shows two things: Righthaven lacks standing to sue based on what the EFF calls "sham’’ copyright assignments; and that the contract creates an "illegal arrangement for champerty.’’
None of the federal judges hearing Righthaven cases have yet ruled on whether the lawsuit contract – the Strategic Alliance Agreement -- provides for "sham’’ copyright transfers. Righthaven has disputed this, though U.S. District Judge James Mahan is threatening to dismiss one of the Righthaven suits based on his belief that the lawsuit contract does not give Righthaven standing to sue.
And while charges of champerty and barratry have been leveled by numerous defendants against Righthaven and Stephens Media; as well as against Righthaven in its Denver Post lawsuits, none of the judges hearing Righthaven cases has definitively ruled on this charge.
In their motion Wednesday, EFF attorneys highlighted that issue and are seeking a resolution of those claims.
"The Strategic Alliance Agreement is an illegal arrangement for champerty, violating the venerable policy that one may not establish a business to enforce the rights that others are not disposed to enforce. As a champertous agreement, the purported (copyright) assignment is a nullity, and Righthaven has not lawfully acquired the copyright underlying its claim. Accordingly, the court lacks jurisdiction to adjudicate Righthaven’s copyright infringement lawsuit and it should be dismissed with prejudice,’’ said the filing by attorneys Kurt Opsahl and Corynne McSherry with the EFF. Also filing the document were Las Vegas attorney Chad Bowers and two attorneys with the Palo Alto, Calif., law firm Wilson Sonsini Goodrich & Rosati: Colleen Bal and Bart Volkmer.
Citing Nevada case law, and keeping in mind Righthaven is a company, not a law firm, the attorneys offered this definition of these concepts: "Maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a continuing practice of maintenance or champerty.’’
"The three elements of champerty are easily satisfied here: (1) Righthaven does not have a genuine interest in any alleged infringement of the (Review-Journal story); (2) Righthaven has undertaken Stephens’ copyright litigation at its own expense; and (3) Righthaven has done so with the expectation of receiving a part of the litigation proceeds in the event of success,’’ the filing said.
And based on these issues, the EFF attorneys asked Chief U.S. District Judge for Nevada Roger Hunt to dismiss the Righthaven lawsuits not just against DiBiase but against other Righthaven defendants as well.
"Righthaven has filed hundreds of lawsuits in this district apparently based on identical sham assignments, several of which are pending before this court. Where the defendants in those cases lack representation and, therefore, are not well positioned to raise the standing issue, Mr. DiBiase respectfully urges the court to consider ordering Righthaven to show cause why those cases should not also be dismissed for lack of standing,’’ the filing said.
"Copyright law demands that only the owner of exclusive rights under the Copyright Act can enforce copyrights -- someone with some skin in the game," Opsahl said in a statement Thursday. "But the Strategic Alliance Agreement between Righthaven and the Review-Journal shows that the newspaper kept all the rights to exploit its article. Righthaven's role is only to pursue heavy-handed lawsuits while trying to extract settlements for less than the cost of defense."
In its statement Thursday, the EFF said Righthaven's suits are "riddled with bogus claims and baseless demands'' -- for instance demands that defendants foreit their website domain names to Righthaven, demands rejected by two federal judges.
"Righthaven's copyright trolling undermines free and open discussion on the Internet by punishing people for sharing information about the news of the day, even where that
sharing is perfectly legal," McSherry said in the statement. "We're asking the judge here to put a stop to this bogus lawsuit and help set a precedent that may finally end Righthaven's litigation campaign."
Righthaven has not yet responded to this motion – it likely will before Hunt rules on it. Separately, Righthaven appears to be headed towards another court showdown over a lawsuit involving a Denver Post column.
Righthaven is suing Denise Nichols, 60, a retired military nurse in Wheat Ridge, Colo., in the Denver area, in a suit seeking $150,000 in damages. The suit charges she posted without authorization on veteranstoday.com an entire Denver Post column of interest to veterans.
The post at issue credited the column to the Denver Post and its columnist, Susan Greene, and linked back to the Post website.
Upon learning Nichols is a veteran and has health problems related to her service in Desert Storm, the first Gulf War, Righthaven indicated it’s willing to drop the lawsuit.
But Righthaven is unwilling to pay her $1,500 in attorney’s fees – causing Nichols to complain the lawsuit is hurting her health and potentially setting up Righthaven for a public relations problem similar to its suit against blogger Brian D. Hill, who has disabilities.
An attorney for Righthaven reiterated Thursday it understands Nichols is a veteran, has health issues and is upset about the lawsuit.
The attorney, Shawn Mangano, said he’s tried in good faith to reach an understanding with Nichols and her attorneys, but that Righthaven won’t agree to cover her legal fees.
That’s based on guidance from the court that Righthaven won’t have to pay her attorney’s fees if it dismisses the case with prejudice, meaning it can’t sue her again for the same conduct, Mangano said.
Attorney’s fees would be an issue if Righthaven dismissed without prejudice, meaning it could sue her again, Mangano said.
But an attorney for Nichols, John Arsenault in Denver, said Thursday that Nichols views that court guidance differently. Arsenault said he’s prepared to press Nichols’ demand for attorney fees, if that’s what she decides to do.
Given the stress she’s endured from the lawsuit, "Requesting her attorney’s fees is certainly an option for her,’’ Arsenault said.
Nichols, who has declined comment on whether she actually posted the column at issue, has called Righthaven a "despicable anti-veteran, anti-people lawsuit mill’’ and she sent a flurry of letters to a federal judge in Las Vegas recently complaining about the way Righthaven is treating her and other veterans it has sued.
Righthaven has denied it targets particular groups with its lawsuits and its 265 lawsuits since March 2010 have been filed against defendants including individual bloggers, nonprofits, liberal groups, conservative groups and big, well-funded companies.
"Righthaven is being heavy-handed and placing many defendants’ health at risk by their actions,’’ the Air Force veteran said in a letter to U.S. District Judge Gloria Navarro that was posted to the court file April 27.
"I am feeling stressed over this lawsuit with Righthaven,’’ Nichols wrote in a second letter.
"I have significant health issues. I am a sick Gulf War 1990-1991 nurse who has stood up and took care of other Gulf War vets for 20 years since the war including walking the congressional chambers in Washington, D.C., doing briefings, testifying five times, getting cosponsors on bills to get the bills passed, fighting for research funding and recruiting researchers.
"Much less taking care of veterans over the phone, in person and by email, etc., for 20 years nonpaid,’’ she wrote.
Nichols went on to complain about the Righthaven lawsuit against Hill, the North Carolina blogger who has his own disabilities, as well as Righthaven suits targeting veterans and veterans groups including Larry Scott of www.vawatchdog.org , who settled with Righthaven in October; the P.O.W. Network and Charles P. Schantag, who also settled with Righthaven in October; decorated Kentucky veteran Wayne Hoehn, who continues to fight the Righthaven lawsuit against him; and civilian veterans’ advocate Michael Leon, who saw the Righthaven suit against him dropped after he wasn’t served in time.
"We veterans believed in fair use and were simply trying to educate and inform our fellow veterans and use our freedom of speech,’’ Nichols wrote.
Nichols again objected to efforts by Righthaven to insert language in the lawsuit dismissal that Righthaven for humanitarian reasons will consider a defendant’s health situation and military service in deciding whether to drop lawsuits.
On Thursday, a day before Righthaven was to report to Navarro the status of its negotiations on dropping the suit against Nichols, Nichols delivered another blast against Righthaven – which has seen its case against her complicated by the fact she was served with the wrong version of the suit not naming her as a defendant.
"I just want to made whole again. Righthaven should pay my attorneys' fees and costs for a start. Assuming I survive this litigation -- that Righhaven has mistakenly served upon me -- I want to stand with my fellow veterans like Wayne Hoehn, exercise our right to free speech and beat back the forces like Righthaven that would have Americans deprived of the rights for which we risked our lives for during our service," Nichols said in an email to the Las Vegas Sun and VEGAS INC.
"We feel fair use to keep veterans informed on veterans and health issues is critically important and also relates to freedom of speech among military, their families, veterans, retirees, and the disabled is a critical issue. We that speak up are trying to serve still and help each other without any pay or compensation and we wonder if more veterans, military, retirees and disabled people have been caught in this mess,’’ she said.
"They are trying to get me to do their public relations,’’ Nichols complained. "I feel they truly do not care for anyone and are just trying to take people for their money and do not want to face the consequence of their actions and pay for damages done to defendants. I do not think I should be penalized and I think Righthaven should have to pay for the cost that they have cost me.''
Leon, who is assisting Nichols, said in his own statement: "Stealing money from a decorated veteran like Wayne Hoehn is bad P.R. Killing the veteran nurse Denise Nichols would be a disaster.’’
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