Archive for the ‘thugsters’ Category

Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Ding Dong! Righthaven is Gone!

Friday, March 16th, 2012

Righthaven, the Nevada-based copyright thugster that sued scores of mom-and-pop bloggers with heavy-handed lawsuits seeking six-figure awards, has had its engine – or it’s malignant beating heart, the metaphor’s up to you – pulled out of it. The U.S. District Court in Las Vegas has ordered the transfer of all of Righthaven’s copyrights – the copyrights it used as its basis to sue – to a court-appointed receiver to auction them off against $186,680 owed to creditors, including Righthaven defendants who won fee awards.

The first auction may start on Monday.

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.

Todd Kincannon Unfazed by Righthaven’s Bankruptcy Talk

Tuesday, September 13th, 2011

Righthaven antagonist J. Todd Kincannon (Photo: The Kincannon Firm)

I asked Todd Kincannon, the lawyer signing up plaintiffs for a Righthaven class action, what he thought of the company’s claim that it was on the verge of bankruptcy.

“I always knew Righthaven would file bankruptcy if things got rough,” Kincannon told me by e-mail. “They
were set up as a limited liability company just so they could do that. Fortunately, Stephens Media, MediaNews Group, Sherman Frederick, Steve Gibson, and Dickinson Wright all seem to have plenty of money.”

I kind of thought he might think that.

The truth is that Righthaven’s bankruptcy, if and when it comes to that, won’t be the end of the Righthaven story. Instead, it will be the beginning of the second half.

Over its first year and a half, Righthaven was on the offense, swooping down on unsuspecting bloggers and holding them up for a few thousand dollars a piece. Then, in June, the Democratic Underground decision came down, and the tide reversed. Things are now swooping down on Righthaven. Not only does Kincannon have his nascent class-action, but there’s the strong possibility of bar discipline against Righthaven attorneys, and you can even see the potential for criminal charges (federal racketeering charges and conspiracy to obstruct justice, for instance).

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.

Is Nik Richie “The First Reality Blogger”?

Thursday, September 8th, 2011

I’ve already commented about Nik Richie’s interview on ABC’s 20/20 news magazine and how he compared himself to Mark Zuckerberg.

But there’s another crazy thing Richie said that bears mention: Richie said that he’s “the first reality blogger.”

That’s false in three different ways:

Not “first” – The first reality blogger was the first blogger. And that might be Justin Hall, who started his there’s-no-such-thing-as-too-much-sharing website in 1994. By “logging” his life on the web, Hall and others like him were the first “web loggers” or ‘bloggers. That’s how it all started. And it was all reality. And, more to the point, it was reality

Not “reality” – TheDirty.com doesn’t offer reality at all. The content on TheDirty.com is, we must presume, mostly made up. To the extent TheDirty.com contains some actual “reality,” you’d never know it, because it’s floating in a sea of fiction. Real people are photographed and named, but made-up stuff is attributed to them as a matter of course. That makes it distinctly different from reality.

Not a “blogger” – The content that makes TheDirty.com what it is comes from the people who comprise Richie’s “Dirty Army.” The 20/20 report calls these anonymous people “tipsters,” but that’s not accurate. They are really the writers – the “bloggers.” Richie selects what will go up on the blog, generally adding a comment or two of his own. But he doesn’t write it. That distinction is important, because if Richie wrote this stuff himself, he would be sued into the next dimension. The only thing that keeps his enterprise going is Section 230 of the Communications Decency Act. (And ultimately, I don’t know that even that law, as powerful as it is, will be enough to sustain him.)

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

ALCU to Sue Baltimore Police Over On-the-Spot Video Seizure and Deletion

Thursday, August 18th, 2011

Badge of the Baltimore Police Department and still from YouTube video of police incident at 2010 Preakness Stakes

The Baltimore Sun reports that the American Civil Liberties Union is threatening to sue Baltimore police for illegally seizing a man’s camera and deleting videos from it at the 2010 Preakness Stakes. This could be an important case for citizen journalists and bloggers.

The man, Christopher Sharp, was taking video with his cell phone of what appears to be the use of excessive force in the arrest of a woman, a friend of Sharp’s, at the prestigious thoroughbred horse race. According to the ACLU press release:

[A]fter Sharp recorded the police beating, he was detained and harangued by police officers, who demanded that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer who assured him he would simply download the videos for evidentiary purposes, then return the phone to Sharp. Instead, police destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.

Another video of the same event shows the bleeding woman pinned down on the floor of the Pimlico Race Course clubhouse as a crowd watches in a wide circle. One police officer can be heard asking “Why’re they taking pictures?” and saying “Get him,” directing a fellow police officers to the location of a camera-operating onlooker.

Also in that video, you can hear another police officer making false assertions about the law, saying that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” In order for Maryland’s wiretapping law to apply, there would have to be a reasonable expectation of privacy. It would be beyond absurd to argue that the police had a reasonable expectation of privacy while arresting a woman in the middle of huge crowd at one of the biggest sporting events of the year. Even if there had been no crowd, the law should, in my opinion, construe an implied lack of expectation of privacy in all encounters between police, in the course of their duites, and members of the public.

Putting aside the legal, constitutional, and political questions, there is the simple sad fact that Sharp lost a lot of video footage that was tremendously valuable to him.

“I’m heartbroken over the videos I lost of my son and I doing things together,” said Sharp in the press release. “The videos were keepsakes of memories like his soccer and basketball games, times at the beach and the Howard County fair. It kills me that the police acted as if it was okay for them to could just wipe out some of my fondest memories. I used to trust police, but now I don’t anymore, because of how wrongly the police acted here, and because it seemed like this was just routine procedure for them.”

Kane Declares Victory Over Forever 21

Thursday, July 7th, 2011

Black feather cape with broochRachel Kane over at blog wtforever21.com has declared victory over Forever 21 in their nascent legal dispute. After Kane hired legal counsel and told the fast-fashion retailer their legal position was, in so many words, as silly as Feather Cape with Brooch ($39.00), there has been nothing but silence on the other end. So after Forever 21 failed to respond by Kane’s own imposed deadline, she interpreted silence as acquiescence and is now back calling out sartorial snafus on a daily basis.

In her words: “This is a dark defeat for MC Hammer pants, floral jumpsuits and blinged out mini hats, but a joyous triumph for those who like to make fun of them. Which is pretty much anyone with eyes.”

Note to bloggers who are on the receiving end of baseless legal threats: The way Kane handled this is instructive. Respond to the threatening letter with a patient explanation of how the claim is legally lacking, in a tone that is courteous but firm, and then say you’ll get back to doing whatever it is by such-and-such a date unless they give you a compelling response.

Congratulations, Rachel. Blog on!

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.

Prosecutor Michael C. Green Should Resign

Tuesday, June 28th, 2011

Monroe County District Attorney Michael C. Green (Photo: Monroe County)

Prosecutors have dismissed their case against Emily Good, who was arrested for video recording Rochester, N.Y. police officers during a traffic stop. Good, who was doing the filming while on her own property, was charged with “obstructing government administration.”

The entire affair was a rank abuse of power.

The police involved should be disciplined. Many have chimed in to call for that, and an internal review is pending. But what I have not seen much discussion of is the role of the DA’s office in this.

Good was arrested May 12. It took until yesterday, June 27, for the DA’s office to get rid of this case. That is, they waited until after a media firestorm and protests erupted. The fact is, Good never should have been charged. The DA’s office in Monroe County, N.Y. failed in its obligation to protect the public trust. Instead, the district attorney’s office used its resources to intimidate a citizen obviously exercising constitutionally protected rights.

Monroe County DA Michael C. Green should tender his resignation immediately.

Unless there is something big that I’m missing – such as Green being in a coma for the last month – he bears the responsibility for the lion’s share of this disgrace. The police arrested Good. But it was the DA’s office who pursued the case.

The Monroe County DA’s office is a big place, and I understand that, but there is no way this could have escaped Green’s attention early on. Green should have taken action immediately to dismiss the charges and set this right. Instead, by pursuing the case as far as he did, Green – who is an elected official – sent a clear message that he will use the power of his office to protect local government from citizen scrutiny and intimidate its critics.

And, by keeping this going, he forced Good to hire a lawyer to defend herself from these sham charges. Someone had to pay for that. And no citizen should have to endure it. Absolutely outrageous.

Shame on Mike Green.

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.

Rachel Kane Should Look to Princess Diana for Inspiration

Tuesday, June 14th, 2011

Here’s a tip for the lawyers of Rachel Kane, the California blogger who has vowed to fight back against Forever 21′s attempt to shut down her blog with a bogus trademark lawsuit:

Make sure you check out Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, 184 Cal.App.4th 313 (2010). It’s a wonderful case which allowed the Franklin Mint to advance its malicious prosecution claim against the prestigious L.A. law firm of Manatt, Phelps & Phillips for filing a baseless trademark and right-of-publicity suit. That suit had been brought by Princess Diana’s estate against the Franklin Mint for, among other things, manufacturing the Princess Diana Vinyl Portrait Doll with blue beaded silk gown (which retailed for $245 – WTF?).

I blogged about the decision last year. As I said then, it’s a great case for bloggers, because it shows that there’s a downside for thugsters overreaching on trademark theories. In the Franklin Mint v. Manatt case, the California appeals court found that there was no “probable cause” to claim trademark dilution or right-of-publicity infringement, and, therefore, Manatt could be liable to the Franklin Mint for maliciously bringing a groundless lawsuit.

Manatt argued vigorously that trademark law was too fuzzy and unsettled for the California court to allow a malicious prosecution claim to go forward. But the court disagreed, saying that the “application of fundamental principles of trademark law to the facts of this case show there was no probable cause to prosecute the trademark dilution claim.”

The same exact thing could be said about Forever 21 v. Kane.

Forever 21 Threatens to Sue Critical Fashion Blogger Out of Existence

Tuesday, June 7th, 2011

Blue ruffled romperClothing retailer Forever 21 is threatening to sue blogger Rachel Kane if she does not take down her blog WTForever21.com.

Forever 21′s alleged cause of action is trademark infringement. Which is absolutely ridiculous. The test for trademark infringement is “likelihood of confusion.” The question for the court would be, “Are consumers likely to be confused as to the source of WTForever21.com, thinking they are really dealing with Forever 21?”

Of course they wouldn’t be. Especially when Kane deals out criticism like this, referring to the blue romper on the right:

Quick question. Just, super fast. One minute…

Ruffled Romper: $24.80

WTF IS this?

Seriously. Why does this romper exist? Is it the official uniform of some highly unfashionable flight attendants from the 50?s?

I wouldn’t wear this on a DARE, let alone pay $25 for it and be SEEN wearing it up and down the land during my daily life.

It looks like something in the collection of casual wear from “The Running Man.”

Forever 21,

WTF?

Apparently, Forever 21 doesn’t like criticism. (Even though Kane mixes in admiration for her favorite store, such as “pay[ing] earnest tribute to Forever 21′s cunning clothing style.” Most recently, Kane saluted Forever 21′s “flouncy, feminine features made to keep you feeling and looking cool for the fairest months of them all.”)

Forever 21′s thugster stance on intellectual property is especially ironic considering that they are constantly being attacked by whining designers who bristle at Forever 21′s perfectly legal copying of their designs. In fact, Forever 21′s fans are habitually fighting off attempts by elite fashion designers to push new legislation through Congress that would illegalize F21′s business model.

As Kane might say:

Forever 21,

WTF?

UNESCO Celebrates Press Freedom with Press Restrictions (Again)

Tuesday, May 3rd, 2011

World Press Freedom Day 2011 graphic with copyright notice: "© UN Foundation and WPFD 2011 Executive Committee / World Press Freedom Day 2011"

World Press Freedom graphic reproduced without permission and in knowing and intentional violation of UNESCO's terms of use. So there.

Today is the UN’s World Press Freedom Day. I note this year, as I did last year, that UNESCO is celebrating the day while making conspicuous assertions of I-me-me-mine intellectual property entitlements to their graphics. And their terms of use, by their own terms, disallow the re-use of their graphics for editorial commercial purposes:

All contents on this website are protected by copyright. UNESCO is pleased to allow those who may choose to access the site to download and copy the materials for their personal, non-commercial use.

Any copy made of the materials must retain all copyright and other proprietary legends and notices in the same form and manner as on the original. Any use of textual and multimedia information (sound, image, software, etc.) in the website shall be accompanied by an acknowledgement of the source, citing the uniform resource locator (URL) of the page (Title of the material, © UNESCO, URL).

No other use of the materials is authorised without prior written permission from UNESCO.

It’s so silly. I suppose if they aren’t aggressive with their assertions of IP, they’ll have the folks from WIPO harassing them at the next UN cocktail party.

Sean Harrington on Righthaven, barratry, and champerty

Monday, March 21st, 2011

I’ve just come across a nice blog post on Righthaven, written by law student Sean Harrington and published on the official blog of the Minnesota State Bar Associations’s Computer and Technology Law Section:

Harrington has a quick analysis of what is happening with two antique defenses that are getting a workout by Righthaven copyright-infringement defendants: champerty and barratry. The post also provides some brief analysis of the relation of Perfect 10 v. Amazon case to Righthaven litigation against someone whose website/blogging platform displayed inline-linked images.

North Dakotans Fighting Back Against Righthaven

Wednesday, March 16th, 2011
Stave church in Scandinavian Heritage Park in Minot, ND

Stave church in Scandinavian Heritage Park in Minot (Photo: EEJ)

The latest Righthaven news is that folks in my own state of North Dakota are fighting back against the copyright thugsters. Steve Green of the Las Vegas Sun reports that Righthaven sued Scott Hennen and Rob Port of The Say Anything Blog, based in Minot (rhymes with “Why not?”), North Dakota.

The suit is yet another one claiming copyright infringement for reposting the TSA pat-down photo from the Denver Post. The bloggers, for their part, are claiming fair use of the photo and have filed some kind of counterclaim. I’m not sure what the purpose is in filing these counterclaims. The one set of papers I saw, which was not from Say Anything, counterclaimed for declaratory judgment. Counterclaiming for declaratory judgment is basically turning around and suing the person who sued you in order to get a pronouncement from the court that the person was wrong to sue you in the first place. I just don’t get how that adds anything to winning the original lawsuit. But, at any rate, I I’m glad to see my fellow North Dakotans fighting back.

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.

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.

When Do Works Enter the Public Domain?

Wednesday, January 5th, 2011

Copyright protection, under the U.S. Constitution, only lasts for “limited times.” That means eventually (at least theoretically) all copyrighted works, including photos that can be incorporated into a blog post, will enter the public domain at some point in the future.

So how old does a work have to be to enter the public domain?

Well, it’s complicated. You are generally safe assuming something is in the public domain if it was published in 1922 or before. (The hazy legal world of apparent exceptions are discussed here and here.)

Does that mean that next year works from 1923 will enter the public domain?

Unfortuntately, no. The reason why is that Congress has been, for decades now, regularly extending copyright terms at the bidding of the entertainment industry. The latest special-interest windfall was the Sonny Bono Copyright Term Extension Act (text, summary). Because of this most recent extension legislation, the public domain is stuck at 1922 and will be for quite a while.

The public domain won’t grow again because of copyright expiration until 2019 – unless Congress extends the copyright term again. And you can bet that special interests are lined up to lobby for that extension when the time comes.

Since Disney lobbied hard for its passage, the Sonny Bono Act was dubbed the “Mickey Mouse Protection Act” by some. Without the law, Mickey Mouse’s original cartoon short films would have entered the public domain by now.

But note that, because of sloppy work done in Disney’s early days, people who have looked at the matter closely (here and here) have concluded that the original Mickey Mouse and the motion picture Steamboat Willie (in which Mickey made one of his first appearances) are no longer the subject of a valid copyright. The public domain status of Mickey Mouse remains untested in court. People tend to be very afraid of Disney lawyers. I can’t imagine why.