Archive for the ‘reposting’ Category

The Implosion Accelerates: Righthaven Begs for Stay, Warns of Bankruptcy

Monday, September 12th, 2011

Bankrupt monopoly guy with copyright symbol replacing faceThe copyright-lawsuit factory that has sued scores of bloggers appears to be nearing the financial precipice. Steve Green of the Las Vegas Sun and Vegas Inc. reports that Righthaven is pleading with the U.S. District Court in Nevada to stay an order to pay $34,045 in attorneys fees arising from Righthaven’s failed lawsuit against Kentucky resident Wayne Hoehn over a post on a sports-betting message board. Judge Phillip Pro dismissed that lawsuit in June, holding that Righthaven lacked standing to sue Hoehn, and, additionally, that Hoehn’s reposting of an entire column from the Las Vegas Review-Journal was protected as fair use. As a result, Judge Pro ordered Righthaven pay Hoehn’s attorneys fees. On Friday, Righthaven asked Judge Pro to stay his order while it is appealed to the 9th Circuit. Green writes:

Righthaven … said the gridlock over its lawsuits has hurt its finances – and expressed concern that attorneys for prevailing defendants like Hoehn may seize its assets and put it out of business.

Righthaven, begging for mercy. I don’t even have the words to describe the irony here.

When a company breathes the word “bankruptcy” as part of a plea for delaying the payment of some debt, it generally means the implosion is already well underway. That being the case, we can expect anyone who has a judgment against Righthaven to rush to seize assets as fast as possible. That will force Righthaven to run to bankruptcy court to get the protection of the automatic stay available for bankruptcy filers.

I haven’t seen Righthaven’s emergency request to Judge Pro, but I can’t imagine there’s any good reason to grant it unless Righthaven is able to post a bond – which they might not be able to do if they are nearing bankruptcy. This is something that the bankruptcy courts can sort out, and will probably will have to.

And, by the way, yes, this means Righthaven defendants could end up controlling – through a creditors’ committee – the copyrights that were used as the basis for suing them. It also means that a lot more Righthaven documents could be opened up to public scrutiny.

“Breaking” News: Righthaven’s Partnership with the Denver Post is Sundered

Thursday, September 8th, 2011

Image of Righthaven website broken in twoLawsuit mill Righthaven has now suffered its biggest setback yet: MediaNews Group, publisher of the Denver Post has walked away from its year-long partnership.

As one of the biggest newspaper chains in the United States, MediaNews was Righthaven’s prestigious business partner in a volume business of suing hapless bloggers for copyright infringement. Even as Righthaven has been dealt a string of blows in court, the partnership with MediaNews gave Righthaven real cred.

Now that’s gone.

Steve Green of the Las Vegas Sun and Vegas Inc. explains what’s happened and provides the context. Key to the story is that MediaNews Group’s change of heart corresponds with a change in management. New CEO John Paton has different ideas about what MediaNews should be doing in the face of the digital transition – and it’s not suing readers.

In his previous job as CEO of Journal Register Co., Paton tweeted about Righthaven, “Such a bad idea for newspapers. I’m speechless,” Green relays. And Wired.com quotes Paton as saying that partnering with the Las-Vegas-based Righthaven “was a dumb idea from the start.”

That leaves Righthaven standing alone except for its maiden business deal with the Las Vegas Review-Journal. (That relationship looks intact for now.)

So this answers the question of whether other big newspapers owned by MediaNews Group – such as The Detroit News, The San Jose Mercury News, and the Salt Lake City Tribune – would be joining hands with Righthaven. Happily, it ain’t so.

It’s a good day for newspapers, a good day for bloggers, and a good day for law.

The Shields are Down! The Shields are Down!

Friday, September 2nd, 2011

Righthaven – the copyright thugster and blogger-suer extraordinaire – continues the nosedive it began with its Democratic Underground defeat in June, the revelations from which led me to suggest the Nevada bar should consider attorney misconduct charges against Righthaven CEO Steve Gibson.

Here’s some of the latest to happen since then:

Insignificant rebellion? South Carolina attorney Todd Kincannon is looking for people who’ve been sued by Righthaven to be clients for a class-action litigation he’s putting together. He’s even looking for people who’ve already settled. Wow, I don’t recall ever seeing people have a potential cause of action because they’ve settled. Righthaven hoped to blaze new legal trails – but not like this!

Screenshot of Righthaven website

I used to bulls-eye womp rats in my T-16 back home. They're not much bigger than two meters.

Righthaven has a website! I don’t know when this started, but it’s the first I’ve noticed it. When Righthaven originally hit the news, they didn’t have a web presence, but now they have this intimidating looking site. And what’s funny about it is, the first time I looked at, the television in our home happened randomly to chime in with a sound clip of the Darth Vader Theme from Star Wars. (For reals!) On its website, Righthaven declares itself “THE NATION’S PREEMINENT COPYRIGHT ENFORCER.” It’s also got a funny kind of graphic which, I have to say, kind of looks like the view down the trench of the Death Star. The only thing that interrupts the Dark Side theme is what looks like a gigantic bacterium that is dividing in two. And that, at least, certainly looks foreboding. Now, there’s no other pages or any other content except for the graphic, which has the slogan and contact information embedded in it. (Much of the text is hard to read because it disappears into the background in a typographic meltdown.) Now, you do realize what that means: By my putting up the one inset picture of the Righthaven website (upper right), I’ve copied 100% of the website. Uh oh. And since it’s Righthaven’s own website, this is one copyright infringement suit that they actually wouldn’t have standing problems with. Now, what I’ve done is fair use. Helpfully Righthaven’s misfires have helped establish solid precedent that taking 100% of something can qualify as fair use. Now, a solid fair-use defense hasn’t stopped Righthaven from suing in the past, but maybe it will in the future, since …

lots of $100 bills spread outCha-CHING! After losing on fair use in Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011), Righthaven’s now been order to pay $34,000 in attorneys fees. “The wheels appear to be coming off the Righthaven trainwreck-in-progress,” says Ars Technica. And that’s gonna matter for a business that thrives on low-dollar settlements somewhere in the $2,500 range.

Will Righthaven declare bankruptcy before the year is out? Hmmm. Difficult to see. Always in motion the future is.

16 Months of Righthaven in VEGAS INC’s New Cover Story

Thursday, July 28th, 2011

Cover of VEGAS INC with copyright symbol in flamesLas Vegas business magazine VEGAS INC’s new cover story is Righthaven. This is your chance to catch up in a couple of minutes on the last 16 months of sordid lawsuits against random bloggers, some of them retired or unemployed, for $150,000 plus seizure of their domain names. It’s the most important story in blog law going. The author is, of course, Steve Green, who has been reporting on the Righthaven litigation mill from the beginning. With this recap, he brings you right up to today, where we find the Las Vegas Review-Journal’s “little friend” on the ropes but frantically trying to reinvent its legal strategy in order to stay alive and keep pulling in cash.

Righthaven Recap Recap

Thursday, June 30th, 2011

Eric Goldman, back from Russia, looks to have used jet-lag fueled wakefulness to do a recap of two weeks’ worth of Righthaven rulings on his Technology & Marketing Law Blog. So, if you don’t have time to read all those decisions, Professor Goldman has done you the service of knocking it all down to 1,429 words.

Okay, so if you’re too lazy to read that, here’s my recap of Goldman’s recap:

Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011):

Judge Pro followed Judge Hunt’s Democratic Underground ruling in holding that Righthaven lacked standing, and then went on also to say that Hoehn lost on fair use. Goldman is rightly skeptical of some of Judge Pro’s analysis, saying:

Judge Pro’s discussion on the second point (nature of the work) has attracted some criticism, perhaps justifiably so. It’s difficult to say that a 19 paragraph editorial doesn’t have the same level of creativity as other highly creative works. I tend not to obsess about the details of any fair use analysis given its nature as an equitable defense. The judge was twisting the analysis to make it clear Righthaven should lose. Denigrating the editorial’s creativity is an awkward way to get there, but it demonstrates that judges aren’t buying what Righthaven is selling.

Yeah, I think that’s well put. At the end of the day, you can get way too carried away with the fair-use factors. I tell my students that the most important question in fair-use analysis is just, “Does it seem fair?” (But don’t base your brief around that. It tends not to get explicit endorsement in the case law.)

Goldman notes that Righthaven has lost on fair use three times, including two cases now, including Hoehn, where the defendants re-used THE ENTIRE work. Crazy, because that’s often a show-stopper for fair use.

As a jurisprudential corpus, this fair use caselaw is becoming quite defense-favorable.

Yup. Righthaven is doing more to expand the doctrine of fair use than just about anybody in the past few years.

At this rate, if Righthaven keeps it up, they’ll do more to expand fair use than Google. And it’s hard to do anything better than Google. Especially, you would think, when you’re trying not to.

Righthaven v. Barham, 2011 WL 2473602 (D. Nev. June 22, 2011); ?Righthaven v. DiBiase, 2:10-cv-01343-RLH-PAL (D. Nev. June 22, 2011):

The same Judge Hunt who gave Righthaven the smackdown in Democratic Underground on lack of standing does it again here.

Righthaven v. Virginia Citizens Defense League, 2:10-cv-01683-GMN-PAL (D. Nev. June 23, 2011):

Judge Navarro rejects a 12(b)(6) motion to dismiss on fair use and lack of standing, but notes that the Democratic Underground decision came out after the briefs for Virginia Citizens Defense League were already in. Goldman thinks she’ll get on board eventually:

My guess is that she will be persuaded on summary judgment.

Goldman’s bottom-line assessment:

Righthaven’s business is “in tatters.” Everything’s going wrong for them all at once.

Short of completing a hail mary pass in the Ninth Circuit, there is only one possible endgame for Righthaven, and it won’t be pretty.

Yup. I agree with that too. And I’ll add that your chances of getting an appeals court to come to your aid are likely to drop precipitously when you’ve tried systematically to hoodwink judges at the trial court level by playing fast and loose with the facts.

So, that’s a little over 500 words, recapping a recap of a little over 1,400 words. Have I just showcased what is so liberating about blogging as a literary genre? Or what is so ridiculous about it?

Hmmm. Well, either way, I do feel rest assured that what I just did was thoroughly legal.

South Carolina Supreme Court Filing Claims Righthaven Committed Unauthorized Practice of Law

Wednesday, June 29th, 2011

Todd Kincannon, the South Carolina lawyer representing Dana Eiser of the Lowcountry912 blog, sent me a petition that he just filed in the South Carolina Supreme Court alleging that Righthaven is engaged in the unauthorized practice of law.

I’ve posted the petition to my own server: [pdf].

I’ve been waiting for someone to do this since I heard about Righthaven splitting litigation proceeds with its newspaper partners. You can’t do that. Lawyers can’t split fees with non-lawyers.

Why not?

If a lawyer splits fees with a non-lawyer, then that means a non-lawyer is collecting fees for practicing law. And you have to be a lawyer to practice law. That’s the logic of it.

As the petition says: “[A]n entity in the business of seeking assignments, pursuing litigation in its own name, and splitting the proceeds with the assignor commits a fraud on the court and the unauthorized practice of law.” (Pet’n, pp. 4-5).

After I get a chance to take a better look at the petition, I’ll write with more.

Is Righthaven CEO Steve Gibson in Denial?

Monday, June 20th, 2011

There’s a remarkable blog post by Jeff Bercovici of Forbes.com – it quotes Righthaven CEO Steve Gibson as saying last week’s defeat in court, which found that Righthaven had no legal basis upon which to sue, “raises an interesting question as to who does have standing.”

Bercovici goes on to quote Gibson as saying, “[I]t is our position that we can reapproach the court [to clarify who, in fact, has the standing to sue].”

Is Gibson in denial? The court said Righthaven was “likely dishonest” multiple times with the court. The order used words like “brazen, “egregious,” “flagrantly false,” and “[possibly] outright deceitful.” The court said previous decisions were “tainted” by Righthaven’s failure to make required disclosures in other cases. Righthaven and Gibson are in serious trouble. Like career-ending, out-of-business type trouble. (It’s not even inconceivable that, depending on what all has transpired, that this is go-to-jail type trouble.)

I suggested to reporter Steve Green of the Las Vegas Sun that the court’s language was “the kind of stuff that, if you are on the wrong side of it, would likely cause all the blood to rush to your stomach.” And I blogged something similar.

But I guess not for Steve Gibson. If he is keeping a stiff upper lip, that’s one thing. But if he seriously thinks it’s a good idea to reapproach the court and ask for clarification on who has standing to sue, then he may be having a slight break with reality. Or maybe this is just a manifestation of the kind of hubris that got him to this point in the first place.

The State Bar of Nevada Should Consider Attorney Misconduct Charges Against Steve Gibson of Righthaven

Thursday, June 16th, 2011

bar in courtroomI believe it is time for the State Bar of Nevada to begin an attorney misconduct investigation of Righthaven CEO Steve Gibson and, perhaps, other lawyers at the center of the Righthaven enterprise.

When I first read about the Righthaven lawsuits, I thought what Righthaven was doing was morally deplorable, but I assumed that Righthaven was on solid legal footing. I believed, as apparently did many judges, that Righthaven had become the legitimate owner of the copyrights upon which it was suing.

Righthaven’s acquisition of those copyrights from Stephens Media – mostly to stories from the Las Vegas Review-Journal – were prerequisites to being able to sue hapless bloggers and other individuals, and then threaten them with $150,000 statutory damage awards for having reposted articles or photos. By doing this, Righthaven got many individuals to settle for a few thousand dollars each, allowing Righthaven to do a volume business of minor shakedowns. The Righthaven business model, while vile, appeared to be perfectly allowable under the law.

But now we know that was not actually true. This week, Judge Roger Hunt of the U.S. District Court for the District of Nevada issued an order [pdf] in the case of Righthaven v. Democratic Underground that paints a withering portrait of plaintiff conduct in the case. We now know the assignments of copyrights by newspaper owner Stephens Media to Righthaven were, in fact, sham transactions. And because of Righthaven’s failure to be candid about the underlying arrangements with Stephens Media, it is now clear, as the court found, that Righthaven made material misrepresentations to the court.

Based on the federal court’s findings, this looks to be egregious attorney misconduct.

The federal court appears to be on the verge of sanctioning Righthaven. But the State Bar of Nevada can go much further. The bar has the ability to subject Gibson and other lawyers at the center of the enterprise to professional discipline, including, if warranted, disbarment.

I very much regret suggesting a misconduct investigation against any attorney, but this situation appears to be one with many real-life victims, and the behavior at issue, based on Judge Hunt’s findings, is wholly incompatible with the ethical standards expected of lawyers.

Consider what has happened: Righthaven lawyers constructed a sham transaction, and then made multiple misrepresentations to courts and third parties in order to hide the sham nature of the transaction. This was done in a bid to get a number of unsophisticated, unrepresented defendants to fork over substantial settlement payments, largely out of fear or because of their financial inability to mount a defense.

The potential to pervert our civil justice system in this way is one of the most important reasons attorneys are required to demonstrate a high moral character as a prerequisite to receiving a license to practice law. Righthaven’s behavior, in my opinion, is incompatible with that standard.

Let’s look at the Nevada Rules of Professional Conduct. Rule 3.3, called “Candor Toward the Tribunal,” states that “A lawyer shall not knowingly … Make a false statement of fact or law to a tribunal … ” Another provision, Rule 8.4, states, “It is professional misconduct for a lawyer to … Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] Engage in conduct that is prejudicial to the administration of justice[.]”

Those rules appear to have been violated in substantial ways. Consider the following quote from this week’s order from pages 10 and 11, discussing the Strategic Alliance Agreement (“SAA”), between Righthaven and Stephens Media:

As the undersigned issued one of the orders Righthaven cites for this argument, the undersigned is well aware that Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of interested parties, despite Stephens Media’s right to proceeds from these lawsuits. (Dkt. #79, Ex. 1, SAA Section 5 (granting Stephens Media a fifty percent interest in any recovery, minus costs).) … [T]hose orders were tainted by Righthaven’s failure to disclose the SAA and Stephens Media’s true interest …

And on page 15 of the order:

As shown in the preceding pages, the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an interested party in Righthaven’s Certificate of Interested Parties. … Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District.

Based on these findings, it appears that Rule 3.3 was violated multiple times by one or more attorneys on the Righthaven side. Moreover, again, based on Judge Hunt’s findings, Rule 8.4 was violated in a very significant way in the Democratic Underground case. Of course, Rule 8.4 was likely additionally violated in many other Righthaven cases as well, if not all of them.

I don’t know that Gibson or other attorneys committed misconduct. That is up to the State Bar of Nevada to determine. I certainly can say at this point that there is strong reason to believe serious misconduct has occurred, and it’s more than enough for an investigation. Gibson and others should, of course, have the opportunity to defend and explain themselves. But the matter should, at least, be taken seriously by the bar. That is especially the case where many people have been hurt and public confidence in the legal profession may justifiably be undermined if nothing is done.

Righthaven Goes Down Hard: A Look at the Democratic Underground Decision

Thursday, June 16th, 2011

Cartoonish rendering of the word "KA-POW!"This week copyright thugster and blogger-suer-extraordinaire Righthaven was dealt a stunning defeat in court. (Court’s written order [pdf])

It is a total victory for defendant Democratic Underground, but the ruling’s importance goes far beyond that. Unless overturned on appeal, it clearly signals the end of Righthaven’s current business model. The order also signals that even with restructuring, Righthaven might not have a viable enterprise going forward.

Things were going kind of bad for Righthaven up to this point. But now they’ve gotten suddenly disastrous. Why? Now there’s a newly revealed document – one obtained through the diligent efforts of the Electronic Frontier Foundation – that shows the relationship between troll-for-hire Righthaven and newspaper owner Stephens Media. That document is their overarching contract, the Strategic Alliance Agreement (“SAA”). Once you learn about it, you can see why they wanted so badly to keep it secret.

Righthaven, in suing bloggers for reposting stories or portions of stories from the Las Vegas Review-Journal, had represented that Stephens Media had assigned to it the copyright being sued over in any given case. But now, having scrutinized the SAA, the federal court in the Democratic Underground case has concluded that the copyright was never validly assigned.

And misrepresenting facts to a court is a very, very bad thing to do.

Why wasn’t the copyright validly assigned? It turns out that Stephens Media executed a form assigning the copyright, but, pursuant to the SAA, Stephens Media retained all exclusive rights with regard to that copyright except the right to sue. And a copyright assignment is not valid unless an exclusive right is transferred as well. So, for instance, Righthaven was not conferred the exclusive right to reproduce the article. (And that’s sort of what copyright is all about.)

It would be like transferring title to an automobile to someone but having a contract in place that says they can’t drive it, sit in it, lend it someone else, or even keep it in their garage. In other words, it’s a sham transaction.

I’ve looked at the order, issued by Judge Roger Hunt of the U.S. District Court in Nevada, and I found it to be very thorough and carefully reasoned. The really remarkable thing about the ruling, however, was its tone, which, while not intemperate, was certainly unusual in the staid world of judicial writing.

Look at this from page 6:

Righthaven argues that the SAA’s provisions, which necessarily include Section 7.2, do not alter the unambiguous language of the Assignment or limit the rights it obtained from Stephens Media in the Assignment. This conclusion is flagrantly false — to the point that the claim is disingenuous, if not outright deceitful.

I’ll bet Righthaven maven Steve Gibson felt the blood rush to his stomach when he read this. This is strong language for a federal court.

Also important in this order, the court signals that Righthaven is unlikely to be able to fix its business model’s legal problems with some minor adjustments. The court writes on page 8, in a footnote:

The Court does not determine whether or not the amended SAA would transfer sufficient rights to Righthaven for it to have standing in suits filed after amendment as the Court need not make that determination to rule on these motions. Nonetheless, the Court expresses doubt that these seemingly cosmetic adjustments change the nature and practical effect of the SAA.

It may be that the only things that would fix the business structure so that Righthaven could keep on suing people as it has been would be things that either Stephens Media wouldn’t be willing to agree to. And if that’s true, Righthaven’s through.

New Level of Crazy as Righthaven Sues Eriq Gardner then Pulls Back

Thursday, March 31st, 2011

A reproduction of a reproduction of a reproduction of a reproduction of the photo. (Photo credit: Ay yay yay yay. I have a headache.)

Wow, this is crazy even for Righthaven.

The copyright thugster sued reporter Eriq Gardner for copyright infringement for posting on Ars Technica a photo reproduced in one of Righthaven’s own lawsuit filings. They then voluntarily dismissed the suit.

Hill’s Brief Against Righthaven

Tuesday, March 22nd, 2011

Steve Green of the Las Vegas Sun has a great article covering in considerable detail blogger Brian Hill’s motion filed in his effort to defend himself against a Righthaven copyright infringement lawsuit.

It’s great reading.

Based on the quotes in the story, Hill’s got himself some excellent lawyers They are David Kerr and Luke Santangelo of Fort Collins, Colorado. Great arguments, well written. Fine lawyering. Good job, guys!

Hill, a 20-year-old blogger out of North Carolina, was sued for the Righthaven-standard demand of $150,000 plus forfeiture of his domain name. Hill blogged that despite the fact that he is unemployed and receives disability payments, Righthaven still would not agree to settle for less than $6,000.

In the Las Vegas Sun: My Take on the Rule 11 Threat Against Righthaven

Wednesday, March 2nd, 2011

Steve Green of the Las Vegas Sun interviewed me about Dana Eiser’s rule 11 motion against Righthaven:

Separately, two law professors who have been critical of Righthaven expressed skepticism about threats by Righthaven defendant Dana Eiser to ask a federal judge in South Carolina to order Righthaven to refund settlement funds from prior lawsuits.

Attorneys for Eiser made the threat Sunday as they challenged Righthaven’s standard lawsuit demand that Eiser forfeit her website domain name to Righthaven.

“I’ve never heard of anything like this, and I can’t imagine how it would work. Eiser’s heart is in the right place. I’d love to see Righthaven have to give back the settlement money, but I don’t know of any legal way of forcing them to do that,” said Eric Johnson, an associate professor of law at the University of North Dakota. “Eiser’s attorneys don’t cite any legal authority supporting their claim – at least in the motion.

“Courts perceive very strong public-policy reasons for not overturning or interfering with settlements, even when they seem very unfair,” Johnson said.

The full article also contains quote from Eric Goldman of Santa Clara University Law School. Neither Professor Goldman nor I see much prospect for success here. But I like the chutzpah.

Blogger Aiming to Force Righthaven to Give Back Settlement Money

Monday, February 28th, 2011

Steve Green of the Las Vegas Sun reports on the latest Righthaven news – Dana Eiser, the blogger behind Lowcountry912, is looking to force Righthaven to refund its previously collected settlement amounts.

That would be awesome if it could work.

Righthaven’s Not Part of a Conspiracy, They’re Just …

Monday, February 21st, 2011

If you democratize the media, putting the power of the press in the hands of anyone who is moved to publish their thoughts, you are going to hear from conspiracy theorists.

That’s part of the explanation, I think, behind the conspiracy allegations made about copyright thugster Righthaven. Many bloggers have intimated that Righthaven has connections to the Obama administration, and is thus part of a left-wing conspiracy to silence right-leaning citizen pundits. Others have pointed to the conservative ties of Righthaven-partner The Las Vegas Review-Journal, along with its apparent reluctance to sue Tea Party candidate Sharon Angle, and thus people have suggested that Righthaven is part of some right-wing racket.

The other reason, I think, that people tend to think Righthaven must be politically motivated is a sense that what Righthaven is doing is so mean and absurd, there must be some ulterior motive.

But the real explanation is both simple and sad. They’re just jerks.

I use the word “jerk” advisedly. I’m a law professor, and I try to resist using intemperate language. But that’s the most accurate word I have.

It says something nice about the human race, something about our inherent idealism and irrepressible hope, that so many people want to come up with a morally-driven rationale for Righthaven’s behavior. But the fact is, many people don’t care about anything bigger than themselves. Righthaven is their product.

This is a point I’ve made before: As you go through a week, you accumulate numerous opportunities to sue people. Most of these would-be lawsuits aren’t worth more than a dollar in what lawyers call “nominal damages.” But it is a peculiar feature of the Copyright Act that silly, trivial infringements are compensable in the thousands of dollars. That’s thanks to the law’s provision for “statutory damages.”

In many of its cases, Righthaven has the legal right to sue and recover statutory damages. That’s a power that the U.S. Copyright Act has conferred. But our whole legal system is predicated on the fact that people will use it but sparingly. That includes lawsuits over copyright infringement.

Our current copyright law is a creature of decades past, a time when the only real participants in the media were businesses with a threshold level of capital and business management. Back then, the concept of statutory damages might have made sense. And it still might make sense so long as copyright owners exercise a level of decency and self-restraint. But Righthaven has proven that you can’t count on everyone to do the right thing. Where the law has created a legal way to extort money from hapless netizens, Righthaven has stepped in for some quick cash.

They’re not evil geniuses. They’re not right-wing extremists. They’re not left-wing zealots. The truth is much worse. They’re just jerks.

Righthaven Tries to Shake $6K Out of Sick 20-Year-Old on Disability

Friday, February 18th, 2011

Denver’s Westword has a report about Righthaven’s lastest victim: a chronically ill 20-year-old mildly autistic hobby blogger who allegedly reposted a Denver Post picture of a TSA patdown. Righthaven said they could make the suit go away for $6,000. The blogger, Brian Hill, who is on disability, says he doesn’t have the money to pay, or the money to hire a lawyer, or the money to travel to Denver to defend himself.

Righthaven Going After Commenters

Thursday, February 10th, 2011

The Media Law Resource Center notes that with a complaint filed last month, Righthaven is now going after commenters, not just bloggers and others who own their own websites.

Combined with the fact that Righthaven is suing over photos that may have been gathered far from their affiliated newspapers’ websites, we’re seeing a considerable expansion in the breadth of Righthaven’s activities.

The MLRC blog post has links to the complaints filed in the commenter lawsuits.

(Let me give a big shout out of thanks to whomever posted the court docs to archive.org. I love seeing original court docs posted somewhere besides scribd.com!)

Gene Quinn’s “How To” on Sending Take-Down Notices

Monday, February 7th, 2011

If someone has ripped off a blog post of yours and you’d like it taken down, the Digital Millennium Copyright Act provides a quick and effective (some would say too effective) way to get that done out of court. You send what’s called a “DMCA take-down notice.”

Gene Quinn, attorney and blogger at IPWatchdog has posted a short how-to piece for bloggers who would like to send a DMCA take-down notice: How to Stop Online Copyright Infringement.

Truly a Troll: Righthaven Suing Over TSA Pat-Down Photo

Thursday, February 3rd, 2011

Steve Green in the Las Vegas Sun reports about a new spate of lawsuits filed by Righthaven against bloggers who have reposted a photo from the Denver Post showing a TSA pat-down of a passenger’s crotch: Blogger, websites sued by Righthaven over ‘TSA enhanced pat-down’ photo

What’s new – and troubling – with these latest lawsuits is that the people being sued may have had no idea that the photo they were using originated with the Denver Post. Since the photo went viral, it’s showed up in Google image search results disconnected from the Denver Post.

Bloggers worried about getting sued by Righthaven had previously been able to steer clear of newspaper sites owned by companies doing business with Righthaven. But that is no longer a way to insulate yourself from Righthaven’s wrath. Using an image from a completely random website – one you might deem unlike to sue, or at least likely to share a commodious understanding of fair use – might land you in the Righthaven drift nets.

I am not a big fan of using the word “troll” to describe people enforcing intellectual property rights. And I’ve resisted using it to describe Righthaven litigation against people who reposted stories from newspapers. But what Righthaven is now doing can truly be called trolling.

Is the Salt Lake Tribune Counting Down to Using Righthaven to Sue Readers and Bloggers?

Monday, January 24th, 2011

Jesse Fruhwirth of Salt Lake’s CityWeekly.net warns that it looks like a copyright-suit hailstorm is brewing with the Salt Lake Tribune.

He points to this notice to readers posted by the Tribune, and he notes that the Denver Post did the same thing about a month before they unleashed copyright thugster Righthaven on a small-time blog in South Carolina.

Righthaven Now Suing Bloggers Over Graphics

Friday, January 7th, 2011

From Steve Green in the Las Vegas Sun:

We should all be grateful to the Las Vegas Sun for devoting so much coverage to the Righthaven lawsuits, and to Steve Green for doing such a good job with it.

The Top Blog Law Story of 2010

Friday, December 31st, 2010

The top blog law story of 2010 is …

What else could it be?

Happy New Year, everybody!

Photo from pdphoto.org

Did the Denver Post Give Lowcountry912 Implied Permission to Repost?

Thursday, December 9th, 2010

On Monday and Tuesday of this week, I wrote about a breakthrough Righthaven copyright-infringement suit, filed on behalf of Righthaven’s new client, the Denver Post, against a local Tea Party activist blog from South Carolina, Lowcountry912.com.

Like many other newspaper websites, the Denver Post has inserted some clever code so that when you highlight some text and copy-and-paste it into another document – say an e-mail or a blog post – along with the text you copied, you also paste an additional bit of information that says “Read more” and then has the URL to go to see the story on the newspaper’s website.

Lowcountry912 has now removed their own reposting of the Mike Rosen column that they were sued over. But I saved a copy before they removed it. At the bottom of their repost, you see this:

Read more: Rosen: A letter to the Tea Partyers – The Denver Post http://www.denverpost.com/opinion/ci_16147229#ixzz10NYc7ACn

Now, so you can tell what you are looking at, the pound sign (“#”) and the string of characters following the pound sign is an ID number that would have been unique to the site visitor that grabbed that text for Lowcountry912.

Why would a newspaper put this bit of code in? It seems clear enough that the paper understands you are copying-and-pasting, and the paper wants the recipient of your copied-and-pasted text to know where to go for more. That way the newspaper benefits from the free advertising you are doing for them.

So, here’s the $150,000 legal question: Does the insertion of the “Read more” text constitute an implied license to copy, paste, and redistribute?

I think so. The implication is that the newspaper knows you are copying and pasting, and they are okay with that.

But now there’s a twist. Are you ready?

When I went to the Mike Rosen column to test this out, and I copied and pasted the text into a blank document, here’s the tag I got at the end:

Read more: Rosen: A letter to the Tea Partyers – The Denver Post http://www.denverpost.com/opinion/ci_16147229#ixzz17QO5FU6X
Read The Denver Post’s Terms of Use of its content: http://www.denverpost.com/termsofuse

See what’s different? There’s two extra lines instructing you to read the terms of use. If you do, you’ll find what amounts to a short essay on copyright and fair use. It includes this:

The fair use rule generally does not entitle users to display the whole story or photograph on their website. To do so is a violation of our copyright and we will use all legal remedies available to address these infringements.

So here’s another $150,000 question: Did the Denver Post’s code insert the instruction to read the terms of use before the Righthaven lawsuit, back when Lowcountry912 copied it?

If you know, please let me know.

And if anyone has a copy of the Denver Post’s terms of use from before they linked up with Righthaven, I would love to see those.

Righthaven’s New Target, Lowcountry912, is in Core First Amendment Territory

Tuesday, December 7th, 2010

Yesterday, I posted about how regrettable it was that copyright thugster Righthaven has signed up a new client, the enormous MediaNews Group.

Now, let’s talk about the lawsuit itself. This new docket item landed on top of Lowcountry912′s Blog. Coming out of Summerville, South Carolina, the blog describes itself as the product of “a group of conservative Americans who want to do everything possible to keep America safe from its enemies within as well as without”.

A grassroots Tea Party affair, the blog makes a habit of reposting stories from the news media as it attempts to rally like-minded citizens to attend weekly meetings at an area church.

What Lowcountry912 is doing is core First Amendment stuff. It involves not just political speech, but it also implicates freedom of association, the Bill of Rights stepsister of freedom of expression.

Or, maybe a better way to put it is that freedom of association is the Park Place to freedom of expression’s Boardwalk. It’s a powerful combination for a plaintiff’s copyright claim to land on.

The post that got Lowcountry912 in trouble was a repost (now removed) of a September 23, 2010 column from Denver Post columnist Mike Rosen that was styled as an open letter to Tea Partyers.

Ironically, Rosen wrote: “While I’m not a card-carrying member of your movement, I enthusiastically support and applaud it. My activism in the war of ideas takes the form of a radio show and a newspaper column. Yours, at the grassroots level, has been invaluable this election year.”

Hmmm. That almost could be interpreted as implied permission to repost his column as part of a grassroots organizing attempt, especially when the column was put in the form of an open letter.

Righthaven Now Suing on Behalf of Denver Post

Monday, December 6th, 2010

The threat Righthaven poses to unsuspecting bloggers has just increased in a big way. Righthaven, who has been busy for the better part of a year suing on behalf of the Las Vegas Review-Journal, is now suing on behalf of the Denver Post.

Steve Green of the Las Vegas Sun reports.

This news is potentially much bigger than just the Denver Post. The Colorado newspaper is owned by MediaNews Group, which bills itself as the country’s second-largest media company. Three huge newspapers owned by MediaNews Group are the Detroit News, the San Jose Mercury News, and the Salt Lake Tribune. Other substantial papers in the group include the Oakland Tribune and Contra Costa Times in California, and the El Paso Times in Texas.

This is a major get for Righthaven, which has been hoping to expand its business of no-warning copyright-infringement suits against unsuspecting small timers. New media clients are important for Righthaven, which thrives on a volume business of grabbing nusiance-value settlements from defendants too poor or too resignedly self-interested to put up a fight.

I’m very sad to see such a large media company with so many good newspapers sign up with Righthaven’s questionable cash-grab scheme.

Gawker Posts Palin Excerpt, Then Backs Off

Monday, November 22nd, 2010

Sarah Palin's America by Heart bookcoverMegablogger Gawker posted excerpts of Sarah Palin’s book, America By Heart, ahead of its release to bookstores. Palin reacted in a tweet: “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn’t that illegal?”

Gawker responded, claiming fair use. But the Associated Press reports that HarperCollins, the book’s publisher, filed a federal copyright-infringement lawsuit against Gawker on Friday.

Gawker, despite maintaining indignancy, has, according to the AP, pulled the exerpted pages down.

So, was it fair use?

Without knowing exactly what Gawker posted and how it fits into to Palin’s book, my initial, very strong, reaction is no, it’s not fair use.

There is actually a U.S. Supreme Court opinion remarkably close on the facts. In Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the high court held that Nation magazine’s unauthorized advance publication of excerpts of Gerald Ford’s soon-to-be-released A Time to Heal: The Autobiography of Gerald R. Ford, did not qualify as fair use.

Ford’s publisher, Harper & Row, has, by way of merger and acquisition, become HarperCollins, which is Palin’s publisher.

You think HarperCollins will cite that case in their brief?

You betcha.

Fair use is a fuzzy, flexible doctrine that produces unpredictable results when introduced in court. At least usually. But wow, it’s hard to imagine better precedent for a plaintiff than this.

In its post defending its actions, Gawker snottily taunted Palin, “[Y]ou may want to take a moment to familiarize yourself with the law … Or skip the totally boring reading and call one of your lawyers. They’ll walk you through it.”

But Gawker may have penned that jibe before they called their own lawyer.

Whoops.

Little wonder Gawker has now backed off.