Righthaven foe says cases are key to free speech
24 September 2012
Las Vegas attorney Marc John Randazza likes a good fight — particularly if it involves free speech and the First Amendment.
He works with the porn industry prosecuting copyright infringement cases and has represented opponents of the Las Vegas Review-Journal’s copyright enforcer Righthaven LLC. Randazza was among the first to criticize Righthaven and its CEO with charges of incompetence and abuse of the courts.
Created by Las Vegas attorney Steven Gibson, Righthaven teamed with the Review-Journal and Denver Post in 2010 to launch an unprecedented litigation campaign against websites, bloggers and message board members who posted online content from the papers without permission. Righthaven filed 275 no-warning lawsuits in Nevada, Colorado and South Carolina in 2010 and 2011 — a departure for the newspaper industry, which typically resolves copyright issues out of court.
The firm eventually stopped operating after Randazza and other defense attorneys convinced judges that Righthaven lawsuits lacked merit and the company lacked standing to sue.
They successfully argued that Righthaven accumulated newspaper copyrights strictly to file lawsuits. That’s not allowed under copyright law. The judges also found that some defendants were protected by fair use, which allows people to use copyrighted material within certain limits.
Randazza and other critics pounded Righthaven for operating as a money-making scheme. They said it used the court system to shake down defendants for cash with coercive settlement demands and unlawful threats claiming it would seize the website domain names of people who refused to settle.
One judge fined the company $5,000 for hiding information and making inaccurate and likely dishonest statements to the court. That judge even suggested the company was operating unlawfully as an unlicensed law firm.
Righthaven said the suits were necessary to stop rampant online theft of newspaper content, but judges showed little sympathy for its tactics.
Righthaven still exists on paper, and Gibson is trying to keep it alive so it can appeal a key ruling and potentially get back in the lawsuit business. After the company claimed poverty and failed to pay $34,045 in legal fees owed to a Randazza client, Randazza convinced a judge to seize Righthaven’s assets and give them to a receiver to be auctioned for the benefit of Righthaven creditors.
The receiver now claims to control Righthaven and has put Gibson on notice that he may be sued for malpractice so she can recover money to pay Righthaven debts – about $318,000 in legal fees won by defendants that prevailed against the company.
Randazza recently discussed with VEGAS INC his role in the Righthaven lawsuit crusade and his love of the First Amendment.
You’re known for doing intellectual property work for the adult industry. How did you get involved in the Righthaven cases?
The real soul of our law firm is protection of free expression. I looked at that (a Righthaven suit against NORML) as a free speech case, not an intellectual property case.
You handled one of the first Righthaven cases for the National Organization for the Reform of Marijuana Laws, which settled by paying Righthaven $2,185. Do you have any regrets about that settlement? Do you think that set a standard for Righthaven being able to pry money out of people?
NORML’s business is advocating for the legalization of marijuana. Its business isn’t fighting intellectual property cases or standing up for the First Amendment. As an attorney my job is to do what my client wants done and do what’s in my client’s best interest.
I often have personal feelings of regret when there’s a settlement because I think, “I could have taken this all the way.” Part of being a professional is setting that aside.
Do I think that that particular settlement helped grease their wheels? I don’t think so. In fact, I think it did the opposite. We spelled out exactly how low their damages really were. All the cracks that eventually broke Righthaven open appeared in that case.
In our early filings, we brought up the issue of standing. We wound up not pressing that because if you can get out of a federal case for $2,185, it’s a no-brainer. You pay that, and you move on.
That seems like a small-claims matter. What was it doing in federal court?
That’s an unfortunate thing about copyright. It’s exclusively federal. So even if you do have a small-claims matter that’s worth only $2,185, you still have to go to federal court. It’s too bad Congress doesn’t find a way to deal with that, maybe with federal small-claims courts scattered about the country.
Do you expect the receiver to be successful in taking over Righthaven and getting insurance money to pay off Righthaven legal fees?
It is the proper function of the receiver to get the judgment creditors paid off. If that’s going to come from some insurance policies, it’s the proper function of the receiver to continue hammering on those. But to try to predict what’s going to happen in that case, you might as well become a weatherman. There’s no telling. If there’s one thing that Steve Gibson is doing, it’s making things unpredictable.
Is there any chance the hundreds of Righthaven defendants who paid settlements can get refunds because judges have found they were wrongfully sued?
I think they should. People who settled based on the fiction that Righthaven had standing have a viable claim.
Whether they want to or not is another story. Because if they do unwind the settlement, they could be opening themselves up for being sued again from, who knows? Maybe Righthaven miraculously gets (R-J owner) Stephens Media to decide to give another go at it. Or Stephens could go after them.
Is wealthy Stephens Media a target someone should go after?
I don’t know. One part of me looks at them as just another victim of this whole scheme. I’d have to investigate if they have moral culpability. But it looks to me like they got taken (by Gibson) as well.
Kentucky insurance agency owner Wayne Hoehn was sued by Righthaven for posting an entire Review-Journal column on a website’s message board and you helped him win $34,045 for legal fees by convincing a judge that Righthaven lacked standing to sue and that Hoehn was protected by fair use. Would you have taken Hoehn’s case if the Review-Journal was the plaintiff instead of Righthaven?
Yes, because of the fair-use element. Given that we do First Amendment and intellectual property work, fair use is right there in that corner where we really thrive.
That case is different than other ones where the standing issue was the sole issue. Mr. Hoehn was doing something that’s absolutely his right to do, and that’s what we liked most about his case.
If there had been some financial benefit for Hoehn, would that change your analysis? The judge noted there was no way Hoehn could profit from the post.
If he was doing this for profit, that might have changed the way we looked at it.
If the Review-Journal was the plaintiff, couldn’t it have argued that his use of the column diverted traffic from its website?
The R-J could have made that argument, but it doesn’t mean it would have changed the fair-use analysis. You still have a right to engage in criticism and commentary.
The core of these questions is, “Wouldn’t it have been better if the R-J would have sued on its own behalf?”
For them, it would have been, and a lot fewer people would have risen up against it. It was the notion of Righthaven creating a commodity market in copyright infringement suits that bothered people.
If Hoehn had been issued a take-down notice, would he have removed the column or replaced it with a link?
I think everyone who was a Righthaven defendant would have done that. From what I saw, your average Righthaven defendant was somebody who had no idea that anybody would be bothered by what they were doing. It wasn’t like someone stealing music on the Internet who knows they’re doing something wrong. I don’t think anyone who was hit with one of the Righthaven cases ever thought this was something they could get sued for.
A lot of the people were elderly. They weren’t necessarily Internet savvy. That was part of their problem.
That also made them more likely victims, didn’t it? If you’re 70 years old and if you get sued, you can lose everything you’ve saved your whole life, or you can give somebody a little piece of it and move on with your life.
Do you think part of Righthaven’s litigation strategy was to scare people by serving them without warning?
Being that Righthaven’s existence and sole purpose was to monetize these minimal infringements, I think that was part of the strategy, to say, “You’ve already been sued, you’ve got to pay.”
The State Bar of Nevada fielded complaints about Righthaven as early as 2010 and this year acknowledged it was investigating the company. The Bar says it has a heavy case load, but what do you make of the fact that nothing seems to have been done?
The Bar works in mysterious ways. I don’t want to comment on whether he (Gibson) has done anything that is subject to discipline because I just don’t know. There’s a disconnect between what we don’t want lawyers to do and what is sanctionable.
Where the judge said they misled the court, that’s where I have a real problem as an attorney. To mislead the court, that’s not good, especially when the judge calls you out on it.
What does the delay say about the Bar’s ability to police attorneys?
Given the high profile nature of the Righthaven cases, as a member of the Nevada Bar, I wish the Bar would use this as an opportunity to educate the public about where the line is, even if they say Gibson didn’t cross the line. I can see it creating not the greatest amount of respect for our profession.
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