Allegedly fabricated press release at issue in Righthaven case
20 May 2011
20 May 2011 7:16 p.m.
The most-regretted Righthaven/Denver Post copyright infringement lawsuit is heating up, with new charges that Righthaven tried to get an autistic blogger to sign off on issuance of a press release filled with fabrications.
The charge was leveled Thursday by attorneys for North Carolina blogger Brian D. Hill, who was sued by Righthaven after posting a TSA pat-down photo on his website. Las Vegas-based Righthaven LLC 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 three states since March 2010.
Righthaven claims to have acquired the copyright for the TSA photo from the Denver Post – Hill says he found it online during an image search and had no idea it was from the Post or subject to copyright protection or even taken in Denver. As a symbol of aggressive new TSA pat-downs of airline passengers, the photo 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 involving no-warning lawsuits and what critics call litigation tactics aimed at coercing defendants into settling.
Righthaven eventually dropped the lawsuit, causing another uproar when the judge struck from the court record Righthaven’s commentary warning Hill and others not to infringe on its copyrights. Righthaven later successfully re-inserted that language into the record.
Righthaven is now fighting with Hill’s attorneys over whether Righthaven should pay their fees, with Righthaven saying it shouldn’t since once it became aware of Hill’s medical situation, it sought to resolve the case for $1 and "the defendant’s agreement not to continue to disseminate untruthful statements" about Righthaven.
Righthaven said settlement efforts were blocked by Hill’s attorneys, whom Righthaven says presented an "apparent endless stream of issues.
Hill’s attorneys fired back Thursday, accusing Righthaven of extensive wrongdoing in its dealings with Hill.
In seeking their demand for fees, an amount they have not specified, the attorneys charged Righthaven "provided false or misleading statements under oath to mitigate accrued liability for its actions" as it tried to profit by using "the courts as a mechanism to file retail-scale infringement actions, threatening hundreds of overwhelmed and ill-equipped defendants, such as Mr. Hill, with lengthy and expensive litigation" involving "serial nuisance copyright suits."
They specifically alleged:
• "Contrary to Righthaven’s own declarations provided to this court, upon learning of Mr. Hill’s medical condition it did not, in fact, immediately seek for an amicable resolution of this case for a nominal sum of $1 among other seemingly reasonable terms."
• It was Hill, not Righthaven, who offered to settle for $1.
• " Contrary to the declarations provided to this court, upon learning of his medical condition Righthaven’s initial offer to Mr. Hill was not the reasonable sum of $1, but the outrageous sum of $6,000 -- or approximately 75 percent of Mr. Hill’s yearly income as provided by his Social Security Disability Insurance (SSDI). Further, conforming to Righthaven’s 'settlement playbook,’ in response to Mr. Hill’s disclosure of his financial and medical conditions and his inability to pay such an amount, counsel for Righthaven responded simply that it would cost more than $6,000 to litigate the case. Again, and contrary to Righthaven’s declarations, counsel for Righthaven indicated that they would continue the lawsuit and garnish Mr. Hill’s SSDI in the amount of $50 a month until the $6,000 had been paid - or approximately 10 years."
• "After becoming aware of a critical internet blog article highlighting Mr. Hill’s case, Righthaven contacted counsel for Mr. Hill, and, contrary to statements before this court, rejected what was actually Mr. Hill’s, not Righthaven’s offer of $1. Counsel for Righthaven indicated that settlement could only be achieved if counsel for Mr. Hill offered a written apology, and that it was Righthaven’s intention to prolong the proceedings in order to secure such an apology. In light of Righthaven’s unreasonable demands, all previous offers were taken off the table."
• "Righthaven proceeded to demand terms that were completely unreasonable and solely offered to harass, vex, and embarrass Mr. Hill, his counsel, to preserve Righthaven’s business model, as well as mitigate other litigation actions."
These alleged settlement terms include Righthaven threatening Hill’s First Amendment rights, trying to get Hill and his mother to agree to a gag order about the case in which they would have to pay damages of $10,000 per violation and trying to issue a press release that "fabricated specific quotes falsely representing that Mr. Hill, his mother and attorneys had made false statements directly contrary to the facts and prior declarations made to this court."
Hill’s attorneys also claim Righthaven sought to issue this press release "solely to embarrass and disparage Mr. Hill, insinuating that his mental condition may have led him to make false statements to the public and the court."
They say Righthaven’s proposed press release "falsely represented that Mr. Hill’s counsel endorsed Righthaven’s business practices and that Righthaven had exhibited professional behavior during settlement negotiations."
The proposed settlement also would have required Hill to remove, or attempt to remove, comments about Righthaven posted on websites Facebook, Twitter, Care2.com, Federaljack.com, Scribd, Oneutah.org, Flickr.com, Uswgo.com, Westword.com, lasvegassun.com and Righthavenvictims.blogspot.com.
Hill is represented in the litigation by Fort Collins, Colo., attorneys David Kerr and Luke Santangelo of Santangelo Law Offices.
Shawn Mangano, an attorney for Righthaven, denied the allegations in Hill's filing and said they were misleading.
"Righthaven steadfastly maintains that once counsel of record became aware of Mr. Hill's medical condition it sought to amicably resolve the matter for a nominal sum,'' Mangano said Friday. "Such a resolution included a press release containing content agreeable to the parties' counsel. Mr. Hill's contention that Righthaven sought to fabricate the contents of a press release is not only unquestionably false, but it is truly offensive. Unfortunately, Mr. Hill's untrue assertion that the contents of a press release was 'fabricated' — despite the fact that its contents would necessarily require the approval of his counsel — further evidences the astonishing degree to which Mr. Hill's counsel continues to push the boundaries of acceptable zealous advocacy and the ethical representation of their client."
Text of the proposed Righthaven press release, according to court records. (While the press release identifies Hill's mother as Ruth, records show she goes by Roberta):
FEDERAL COPYRIGHT INFRINGEMENT CASE ENDS IN APOLOGIES BY DEFENDANT
LAS VEGAS, NV – A federal copyright infringement law suit in Colorado involving a North Carolina blogger named Brian Hill, filed by Las Vegas-based company Righthaven LLC has been resolved out of court. Hill’s attorney in the copyright infringement action, David Kerr, acknowledges that the parties have amicably resolved the dispute after cooperative and diligent efforts by both sides.
Hill and his counsel, Kerr, admitted that their past accusations about Righthaven’s business practices were not well-founded based upon the professional behavior exhibited during settlement negotiations between the parties. Additionally, Hill and his mother, Ruth Hill, have admitted that they inappropriately mischaracterized certain facts and made certain inaccurate statements on both the World Wide Web and to other media sources regarding this matter prior (to) engaging in substantive communications, either individually or through their counsel, with Righthaven. Stated by his counsel in public filings associated with the lawsuit, "Hill apparently has a mental disorder," which may have impacted his reaction to the action and the misstatements previously made by Hill.
Hill has expressed his regret for making certain commentary regarding Righthaven, and he has apologized to the company for doing so. Kerr, on behalf of Hill, stated that "Righthaven was well within their rights to pursue the copyright infringement claim asserted and, as alleged, it would constitute a violation of federal law."
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