Friday, April 15, 2011 | 11:58 a.m.
Some Righthaven LLC watchers are wondering if the Las Vegas company is plotting to have the judge handling all of its Colorado copyright lawsuits disqualified from presiding over those cases.
Senior U.S. District Court Judge John L. Kane in Denver has been critical of Righthaven's business model centered on no-warning lawsuits and forcing many defendants to settle with threats of hefty damage awards ($150,000) and website domain name seizures.
With Thursday's court filing defying Kane by refiling commentary Kane had ordered removed from the record, Righthaven has pretty much invited Kane to strike back at Righthaven.
And that may give Righthaven more ammunition to seek reassignment of its 58 Colorado cases to another judge.
"I imagine Righthaven could try a recusal motion, although I think it's going to need more egregious behavior by the judge than what we've seen so far," said Righthaven observer and critic Eric Goldman, an associate professor at California's Santa Clara University School of Law and director of its High Tech Law Institute. "Recusal motions are a little like the old maxim about trying to assassinate the king -- you better have good aim, because the consequences of trying and missing can be severe."
Goldman called the filing by Righthaven on Thursday, involving a dismissal motion of its suit against autistic blogger Brian D. Hill, "incredible."
"I don't have any idea why Righthaven would file a motion like this. It's a big '.... you' to a judge who is already clearly skeptical of their tactics, and worse, it's unlikely to yield any productive results. After all, the name-calling and saber-rattling in Righthaven's first dismissal attempt was juvenile and ineffectual. Fighting for the right to repeat those remarks makes zero sense," Goldman said.
Thursday's renewed dismissal motion came as Hill's attorneys are pressing for the right to collect legal fees from Righthaven -- an issue Kane plans to decide.
Righthaven and its partner in Las Vegas, Stephens Media LLC, owner of the Las Vegas Review-Journal, also may find themselves paying far more substantial legal fees should the Democratic Underground prevail in its counterclaim against Righthaven and Stephens Media.
That case involved a partial post of a Las Vegas Review-Journal story that likely would be protected by the fair use doctrine, based on two fair use defeats already sustained by Righthaven.
Righthaven tried to drop the Democratic Underground case on the condition it not pay the defendant's legal fees. Democratic Underground attorneys are fighting that, saying Righthaven should pay for the defense of the fight it provoked.
"The worst part is that Righthaven appears to be operating under the misguided assumption that it can bring meritless copyright claims and then simply walk away, consequence-free, whenever it makes a mistake or encounters a defendant who fights back. Righthaven is completely wrong about that, and I'm confident it will learn the hard (and expensive) lesson soon enough," Goldman said.
The saga of Righthaven is particularly well-suited for coverage and discussion on the Internet.
Righthaven, of course, sues over website posts. Defendants frequently learn they're being sued by receiving emails or calls from the Las Vegas Sun and VEGAS INC. Then they study up on Righthaven by looking at websites like righthavenlawsuits.com and righthavenvictims.blogspot.com.
(There's not much to learn from Righthaven's website, righthaven.com)
In the meantime, some defendants are telling their story with their own websites.
Bigmedia.org, which has a Rocky Mountain media watch archive, is a website with some interesting Righthaven commentary, including a column that received a good deal of attention called "Ripping off newspaper websites shortchanges democracy."
An active defendant, Michael Leon, has a site here.
Leon has already scored some public relations points against Righthaven, pointing out an error in Righthaven's lawsuit against him over a Denver Post column.
The suit says "the United States District Court for the Southern District of California is an appropriate venue" for the lawsuit. The lawsuit's first page even says "United States District Court -- Southern District of California."
The problem with that is that the suit was filed in Nevada.
An attorney for Leon's codefendant, in the meantime, has filed a response to the lawsuit essentially saying "What in the heck are you talking about?"
The filing suggests the wrong lawsuit, or the wrong version of the suit, was served on the codefendant, Denise Nichols.
"The complaint, which has been served upon her, does not list her as a party. Nor does it contain any reference to her. No claim is stated against her," said the filing by Las Vegas attorney Michael Kimbrell. "In the case at hand, the complaint contains no reference by name or title or occupation that can reasonably be deduced to ensnare defendant or provide even a theoretical guess as to how defendant is supposed to respond."
In an interview Friday, Kimbrell said Nichols was not served with an amended complaint naming her as a defendant. Kimbrell said he hopes Righthaven simply drops the lawsuit, as Nichols is a retired Air Force major in Colorado who served in the military as a nurse and who now on a volunteer basis seeks to help disabled veterans by providing them information.
"It smacks of poor patriotism," Kimbrell said of Righthaven's lawsuit.
The suit charges Leon is the managing editor of the veteranstoday.com website -- allegations denied by Leon -- and that Nichols posted a Denver Post column there by columnist Susan Greene about a veteran who falsely claimed he was injured in combat
If Righthaven continues to litigate the suit, look for a fair use defense based on Veterans Today's stated educational mission and the charitable works of Nichols. The educational mission of the nonprofit Center for Intercultural Organizing in Portland, Ore., is one of the reasons U.S. District Judge James Mahan in Las Vegas ruled it was protected by the fair use doctrine in posting a Las Vegas Review-Journal story there.
Kimbrell, himself a member of the military as a judge advocate general for the Nevada National Guard, predicted further litigation of the case against Nichols would result in a "public relations disaster for Righthaven."
Righthaven likes to call itself a technology company that helps content creators protect their content.
But does this technology involve something more than simple Google searches for material Righthaven suspects has been infringed on?
The answer is yes, Righthaven attorney Shawn Mangano suggests in a recent court filing.
In fighting with attorneys for the Democratic Underground about whether sensitive Righthaven information should be made public, Mangano argued that unsealing that information would surely result in its immediate widespread disemmination in the form of news stories and Internet posts.
He's right about that.
The information at issue involves Righthaven's copyright-assignment arrangement with Stephens Media. (Keep in mind an affiliate of Stephens Media co-owns Righthaven, and Stephens Media participates in the litigation over Review-Journal stories by assigning copyrights for the lawsuits).
Attorneys for the Democratic Underground -- copyright law experts with, and associated with, the Electronic Frontier Foundation -- say they've uncovered information about this arrangement that undermines all the Righthaven lawsuits over Review-Journal material.
Righthaven has denied this, but it's not interested in allowing other defendants and others adverse to Righthaven to see this material.
"Unsealing the confidential materials at issue would ... result in their contents being made available to direct competitors of Righthaven. For instance, one of the defendants in another pending Righthaven action in this judicial district has formed a copyright enforcement company, which certainly appears to be based upon Righthaven’s business model," Mangano wrote in his filing.
That defendant is Hush-Hush Entertainment and an official there.
That apparent "direct competitor" is a porn company working to stop infringements in the form of unauthorized adult movie downloads.
Righthaven itself acquired copyrights to two porn movies last year, but so far hasn't sued anyone over those films.
Righthaven has received plenty of national news coverage from the likes of the American Lawyer, the Los Angeles Times, Wired, Bloomberg, The Associated Press, the Wall Street Journal, the Washington Post, Time magazine and Fortune/CNN.
In the works now, were told, is a New York Times Story.
Righthaven observers note another attorney for the firm, Anne Pieroni, has left Righthaven for undisclosed reasons. Attorneys John Charles Coons, Joseph Chu and Ikenna Odunze left earlier.
With Righthaven CEO and attorney Steven Gibson working on unrelated cases for the Detroit-based firm Dickinson Wright PLLC, the heavy lifting at Righthaven lately has been handled by Las Vegas attorneys Mangano and Steven Ganim. Another attorney, who hasn't been named, is expected to come on board soon.