Archive for the ‘litigation costs’ Category

Former Mayor Must Pay $21,275 in Bloggers’ Legal Bills

Monday, October 29th, 2012

Aurora town logo(Image: Aurora, Ontario website, used without permission.)

A court in Ontario has ordered a former mayor to pay $21,275 in legal bills accumulated by bloggers defending themselves against a local politician’s attempt to silence online criticism.

In 2010, Phyllis Morris, then mayor of Aurora, Ontario, waged a litigation campaign against online critics while she was running for re-election. Notably, she got the town council to foot the bill for the lawsuit with taxpayer money. Months later, well after she lost the election, she voluntarily dismissed her lawsuit.

But defendants William Hogg, blog proprietor-moderator, and Richard Johnson, a blog contributor, kept the case file open to press the court for a money award to pay their defense bills.

Their push paid off.

According to the Toronto Star, in making the award, the Ontario Superior Court characterized Morris’ lawsuit as an attempt to hit her critics “quickly and hard,” in order to quiet her opponents “sooner rather than later in the weeks leading up to the October 2010 elections.”

Blogger Christopher Watts has more about the court’s award, plus a link to the court’s opinion, on his blog, Temporary Sanity.

Prior coverage on Blog Law Blog:

Coverage of the fee award:

It’s Over in Aurora: Ex-Mayor in Ontario Gives Up on Lawsuit Against Blog

Wednesday, October 26th, 2011


Ex-Aurora Mayor Phyllis Morris. (Image: Phyllis Morris Campaign, used without permission.)

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

More:

Everybody Loses: Tarazi v. Geller Settles

Monday, October 10th, 2011
Headshots of Tarazi and Geller

Attorney Tarazi and blogger Geller (Photos: Tarazi, Geller)

Ohio attorney Omar Tarazi has settled his lawsuit against Atlas Shrugs blogger Pamela Geller. The defamation claim stemmed from Geller’s allegations that Tarazi had ties to terrorists.

Under the terms of the settlement, Geller must delete five posts. No money changes hands.

Both sides are claiming victory – Of course.

In an end to what she termed “litigation jihad,” Geller blogged about the settlement, ”Islamic supremacism has suffered a stunning and well-deserved defeat, and a good, stiff kick in the ass.”

Tarazi was more subdued, blogging, “Pamela Geller finally caved in and agreed to permanently take down all of her defamatory posts regarding me to settle the lawsuit.”

The row came out of the 2009 case of Rifqa Bary, an Ohio girl who ran away from her Muslim parents and converted to Christianity. Tarazi was the attorney for Rifqa Bary’s parents. Bary said that her father had threatened to kill her for apostasy. (Authorities were apparently unable to find any corroboration for Bary’s allegation.) Geller, according to a quote on her site, is the “heroine of the right wing blogosphere.” She is also the executive director of a group called Stop Islamization of America

So, who really won?

Well, for fans of our winner-take-all adversarial system of civil litigation, that’s the shame of settlements. You really can’t say who won. Every time there’s a settlement, both sides can say they’ve reached a favorable outcome. That’s true by definition.

But if you want my outsider opinion, I would say nobody won. In fact, I think they both lost.

Geller is taking down her posts. That means she’s been muzzled. That’s clearly a loss for someone who puts herself out there, according to quotes on her website, as “a paragon of courage and fearlessness” and “an irrepressible firebrand.”

Tarazi, on the other hand, is getting no money out of the suit. The litigation was undoubtedly expensive for him to pursue, and when you ask for $10 million as an opening demand and then walk away with nothing, that’s a defeat in my book.

My reading between the lines is that both sides got tired of pursuing this and agreed to call it off.

In our adversarial system of justice, if everyone gets tired of fighting, that’s not only a loss for both sides, it’s a defeat for the system.

Tarazi said about the settlement, “I am … look[ing] forward to moving on with my life.”

How sad is our litigation system when a lawyer plaintiff wants to move on with his life?

More:

Where Can a Blogger Get a Lawyer Around Here?

Thursday, September 29th, 2011

A person identifying himself as a friend of blogger Crystal Cox asked in a comment to yesterday’s post where Ms. Cox could find legal counsel. That’s a great question that a lot of folks have. And I am happy to say I have a number of places to suggest for any beleaguered blogger looking for a lawyer to throw them a lifeline:

The Berkman Center for Internet & Society has created, as one of its many projects, the Online Media Legal Network, a network of lawyers, law firms, and law clinics willing to represent qualifying media clients for free (pro bono) or at reduced rates. The list of members reveals a bunch of heavyweights, including Manhattan media-law powerhouse Debevoise & Plimpton. Not only have they represented the New York Times, but they even employed the author of Blog Law Blog as a summer associate back in the late 1990s! How’s that for a claim to fame? Of course, there are a bunch of other stars on OMLN’s roster as well. To get started in seeking representation through OMLN, read up on their process and requirements. They can’t help everyone, but it can’t hurt to ask.

There’s also the 800-pound gorilla, the Electronic Frontier Foundation, the granddaddy of public-interest law firms for electronic media. The EFF explains on their website how they select clients and how to contact them about possible representation. If you can get the EFF to represent you, that’s completely fansmashtic! But know ahead of time: Many will apply, few will qualify.

A more general source of information about getting represented can be found in the Citizen Media Law Project’s guide to finding legal help. Information there will help you learn about looking for pro bono representationgoing pro se (representing yourself), or, if it comes to that, hiring a lawyer (as in, paying them money).

Of course, if your problem is the opposite – if you are looking for someone to sue you – then Blog Law Blog recommends, por supuesto, BLOGGING! Especially effective is blogging about people or organizations (1) who are well-off enough to hire a lawyer, and (2) who are not already the target of a torrent of criticism.

So, my friends, lawyer up, and BLOG ON!

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.

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.

Freelancer Litigation from 1990s Has No End in Sight

Monday, August 22nd, 2011

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

Celine Dion Succeeds in Shutting Down Humorous Fan Blog

Friday, July 22nd, 2011
Ridiculous Pictures of Celine Dion

Well, this is sad. French-Canadian soft-rock diva Celine Dion has silenced a tongue-in-cheek blog keeping track of absurd pictures taken of her.

All it took was a cease-and-desist letter.

The Tumblr-hosted blog, Ridiculous Pictures of Céline Dion, is now down, with only this message remaining:

hey y’all

céline dion found our blog, and she didn’t like it. we just got a letter from céline’s lawyers that the blog has to be shut down.

though this blog is well within the realm of ‘fair use’, i don’t have the money or time to get a lawyer to respond. the dream is over.

thanks for following and being a céline superfan
i’ll always remember u
i’ll never let go

The blogger’s decision is completely rational, of course. But that just makes it worse. It’s a sadly accurate commentary about the lack of justice that results when the well-lawyered find themselves feeling uncomfortable with constitutional rights of the unlawyered masses.

(Ha’p @LawandLit, @kisbell)

CMLP Legal Guide on DC’s New Anti-SLAPP Law

Wednesday, May 18th, 2011

CMLP logoThe Citizen Media Law Project has updated their online legal guide with information about Washington, D.C.’s brand new anti-SLAPP law.

An anti-SLAPP law is a tweak to court procedure that empowers defendants, who have been sued because of something they said about a matter of public interest, to quickly get rid of frivolous lawsuits filed against them. Anti-SLAPP short circuits the usual lengthy and expensive litigation process required to beat back an unmeritorious complaint.

The idea is to prevent the courts from being used as a way to gag critics of the well-lawyered. Thus, anti-SLAPP laws are potentially very important for bloggers.

The CMLP’s legal guide also runs down the anti-SLAPP laws in California, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Washington state.

Finding Pro Bono Legal Counsel for Bloggers

Tuesday, March 15th, 2011

OMLN and INN logosThe Online Media Legal Network of Harvard Law’s Berkman Center has announced a partnership with the Investigative News Network to help find pro bono and low-cost legal for INN member organizations.

INN was founded in 2009. Its members are non-profit journalism organizations producing non-partisan investigative news. It’s actively soliciting new applications.

OMLN is a network of lawyers willing to provide free and reduced-fee services to digital media creators, including online journalism ventures. OMLN includes law firms, law school clinics, and solo practioners. Interested lawyers can apply to OMLN to be part of its pro bono network.

Wendy Seltzer on the DMCA’s Effects on Free Speech

Friday, January 28th, 2011

The Harvard Journal of Law & Technology has published Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment [pdf] by Wendy Seltzer, a fellow with Center for Information Technology Policy at Princeton University.

Here is the abstract, taken from the draft version of the paper posted on SSRN.

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA’s pressure, the poster’s private incentive to counter-notify and the host’s incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA’s chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright’s place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

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.

Lamebook v. Facebook

Tuesday, November 23rd, 2010

A blog called Lamebook that posts funny Facebook status updates has been threatened with a trademark infringement lawsuit by Facebook. Seeking to vindicate their rights, and probably trying to keep the lawsuit near home where it will be cheaper and easier to deal with, the folks at tiny Lamebook have sued megalithic Facebook for declaratory judgment in Texas. (TeleCrunch, Washington PostHuffington Post)

I haven’t read the pleadings, but this sounds like a strong case for Lamebook. That is, if they can survive a blizzard of high-paid lawyers and billable-hour-sucking motions.

Lamebook should have the right to pick an name and identity that calls to mind Facebook where, as is the case here, it is undertaking an activity that directly concerns Facebook, and it is producing content critical of Facebook.

In my view, that’s not actionable under trademark law, and, to boot, it’s protected First Amendment activity.

But let’s face it: Justice isn’t perfect and dollars matter. We’ll see if Lamebook can survive Facebook’s trademark bullying.

Go Lamebook!

Two EFF Arguments Against Righthaven

Thursday, November 11th, 2010

Joe Mullin at paidContent.org discusses two challenges brought by the EFF to Righthaven: that Righthaven shouldn’t be eligible for attorney’s fees, since it is a made-for-litigation business entity, and that Righthaven has no right to a turn-over of defendants’ domain names.

Righthaven Has a Major Card to Play in Nevada Senate Race

Tuesday, September 7th, 2010

Sharron Angle logo and headshotSteve Green of the Las Vegas Sun reports that the Las-Vegas Review Journal, via its plaintiff stand-in, Righthaven, has sued the Nevada Republican nominee for U.S. Senate, Sharron Angle, for reproducing material from LVRJ newspaper stories on her website. Angle is running against Senate Majority Leader Harry Reid.

The lawsuit seeks $150,000 in damages plus the surrendering of the candidate’s domain name, sharronangle.com.

This shows you how far Righthaven and the Las Vegas Review-Journal have strayed from ordinary, civil behavior. This is a newspaper we are talking about, suing a candidate for office. And not just that, but suing that candidate because of the content of her communications to the public.

If Angle is forced to give up her domain name and cough up $150K in damages, that could easily be the difference in a closely contested election. (And apparently, the race is currently close.)

What happened to reporting on the story, not becoming part of it?

There is some indication that the Review-Journal, which previously used Righthaven to file a lawsuit against the Nevada Democratic Party, was bowing to pressure to be more non-partisan in its carpet-bombing litigation activities. Steve Friess, a blogger and columnist for a rival media outlet, the Las Vegas Weekly, used a series of screenshots on his blog to document Angle’s copious borrowing, egging the Review-Journal on. Friess doubled the dare by calling R-J publisher Sherman R. Frederick and chief editor Thomas Mitchell “full-throated Sharron Angle supporters and Ahab-like Harry Reid haters.”

“Righthaven must sue,” Friess wrote. “It took effort to find the cat blogger, but this one was on a major candidate’s site, there in plain sight. If they don’t sue Angle, they provide dozens of infringers with a clear example of the company’s inconsistency in defending its copyright.”

So now they’ve sued.

But in my view, filing the complaint really doesn’t prove much. The real question is how aggressively will Righthaven pursue the case?

The plaintiff-side lawyering in this case could actually make a big difference in how the Senate race plays out. As a tea-party candidate coming from outside the Republican mainstream, running against a powerful incumbent, Angle is already at a disadvantage in terms of cash and political allies. That makes her website and what money she has all that much more important to her. The attorneys fees in defending against Righthaven could significantly affect her ability to buy television ad time and otherwise get her message out. And during campaign season, every day and every dollar counts.

That means that Righthaven/LVRJ has much more leverage in this litigation than they do in most of their lawsuits, which have been settling for pennies-on-the-dollar nuisance-value amounts. Will the Review-Journal and Righthaven pull punches and sit on the complaint without turning up the heat in court? Or will they move things along procedurally and use their leverage to demand a big payoff?

Here are some more questions: Is it fair for Righthaven/LVRJ to use the leverage that exists because of the tempo of the campaign? Is it fair for them not to?

This is a real mess. From the perspective of integrity and the public trust, I think this is a very sorry position for a newspaper to be in. The Review-Journal never should have involved itself in the Righthaven scheme. I wonder if that is dawning on them now.

Copyright Defendants Remember, Fees Go Both Ways

Tuesday, July 20th, 2010

Mary Jane Saunders, in the Marquette Lawyer, has some words of wisdom that are good for bloggers to keep in mind if threatened by copyright litigation:

All plaintiffs mention attorney’s fees in their cease-and-desist letters, but few of them remember that they might end up paying the defendant’s fees if they lose.

Saunders says that simply citing to the leading precedent, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), can “dissuade a plaintiff from bringing a questionable case.”

The article is here in pdf format.

(Righthaven defendants might want to take note.)

Dallas Morning News Supports Federal Anti-SLAPP Law

Friday, June 11th, 2010

The Dallas Morning News has written an editorial (here) supporting the efforts of U.S. Representative Charles Gonzalez (Democrat from San Antonio), who is trying get a federal anti-SLAPP law passed.

The Dallas Morning News’s reason? To protect bloggers:

Blog participation is exploding, and consumers increasingly are using their keyboards to vent frustrations over being cheated or mistreated by companies. Once posted, those complaints can fall under state defamation laws. In other cases, lawyers for a company criticized on the Internet often sue by claiming “tortious interference” – that the blogger is hindering a company’s right to conduct business.

Purr-loined Story Gets Cat Blog Sued

Tuesday, June 8th, 2010

ALLEGED COPYCAT: Artie, a cat living in Boston, Mass., is the supposed author of a blog that has been sued for reposting a newspaper story about a bird sanctuary.

The Las Vegas Sun reports that its rival newspaper, the Las Vegas Review Journal, has partnered with a company called Righthaven LLC to sue bloggers and others for copyright infringement for reposting Review Journal stories, or portions of stories, on the web.

A total of 34 defendants have been sued in such suits, according to the Sun, the latest group of which includes Allegra and Emerson Wong of Boston, Mass., who have a noncommercial blog about cats: City Feline Blog, written from the perspective of a cat.

Righthaven, the plaintiff in the suits, apparently finds Review Journal stories reposted elsewhere on the web, acquires the copyrights from the Review Journal, and then files suit against the reposters.

The Sun reports that the complaints, filed in federal court in Las Vegas, have generally sought $75,000 in damages, and at least four of the lawsuits have been settled. The amount of the settlement for one of the lawsuits is known: NORML – the National Organization for the Reform of Marijuana Laws – agreed to pay $2,185 to have their action dismissed.

According to the Sun’s review of the court filing, the amount of $2,185  was arrived at by NORML by calculating the maximum amount of the Review Journal’s lost revenue – based on the reposted story’s visitors and the Review Journal’s news archive access fee, and then tripling that amount. The Sun pointed out that NORML’s attorneys’ fees to that point must have easily exceeded the settlement amount. I agree that seems likely.

The NORML filing included this observation: “If Righthaven does not accept this offer, Righthaven may become obligated to pay NORML’s costs incurred after the making of this offer[.]”

I’ll note that with statutory damages, it may well have been possible for the court to award a recovery for Righthaven far in excess of $2,185. Though such a sum might well have been highly unlikely. NORML’s tactic appears then to have been to offer a high nuisance value settlement and then transfer the risk for litigation costs to Righthaven for rejecting the offer and rolling the dice to try to obtain a higher dollar amount.

The Review Journal commented on the lawsuits in their own blog post from the publisher: “Copyright theft: We’re not taking it anymore.”

In a twist, the Las Vegas Sun has, themselves, reposted the bird sanctuary story by hosting a pdf of Exhibit 1 to the complaint against the Wongs.

We’ll be waiting to see if Righthaven takes the bait and sues the Sun.

Implode-o-Meter Decision Upholds Journalist Privilege for Website

Friday, May 7th, 2010

A decision out of the New Hampshire Supreme Court yesterday on the journalist/source privilege was a victory for a website that is a mix of blogs and longer-format articles with anonymous commenting from the public. The site, The Mortgage Lender Implode-O-Meter, is owned and operated by a company that has the coolest name EVER:

IMPLODE-EXPLODE HEAVY INDUSTRIES, INC.

That is awesome. Seriously. If they issue stock certificates, I would buy shares just to be able to get the stock certificate to put up on my wall.
But back to the law… The court’s opinion is here: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. [PDF]
The Implode-o-Meter Blog explains:
The case was The Mortgage Specialists vs. Implode-Explode Heavy Industries, Inc. (the owner of ML-Implode.com). It concerned items posted to MoSpec’s “Ailing/Watch List” entry — the 2007 “Loan Chart” data for the company, and a post by username “Brianbattersby” accusing MoSpec and its President, Michael Gill, of habitual/systemic fraud.
Sam Bayard at Citizen Media Law Project provides analysis here. The court held that the state’s qualified reporter’s privilege applies and Implode-O-Meter could use it to protect the identity of an anonymous source that leaked a loan document to the site. The court wrote:
[W]e reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting.  … [W]e observe that: “Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals. . . .  The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. … [quoting Branzburg v. Hayes, 408 U.S. 665 (1972)]“
The victory is, sadly, bittersweet for Implode-O-Meter. Since the privilege is a qualified one, the N.H. Supreme Court sent the case back to the trial court to engage in a balancing test. And that’s a problem, because Implode-O-Meter is now, thanks to lawsuits, out of money. Founder and publisher Aaron Krowne said yesterday:
We are pleased with the court’s ruling on the fundamental questions of free speech and find little to complain about in the analysis. … We are, however, perplexed that the case was not completely dismissed. … Besides the overall frivolity of the original action, we are unclear what valid issues involving us remain in play … At any rate, since we have been rendered insolvent by the expense of this and similar frivolous SLAPP suits, we aren’t sure how we will be able to mount a continuing “defense” at all.