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Tuesday, April 19, 2011 | 2 a.m.
Sun Archives
Did Las Vegas copyright enforcement company Righthaven LLC play a federal judge last year? And is it now payback time for the judge?
That’s the question raised by the unusually critical language about Righthaven, its copyright lawsuit partner Stephens Media LLC and their attorneys in two orders issued last week by Roger Hunt, chief United States District Court Judge for Nevada.
Here’s the background: After Righthaven and Stephens Media started their litigation spree in March 2010, some of the defendants that bothered to fight back did so with the argument that Righthaven lacked standing to sue over material from Stephens Media’s Las Vegas Review-Journal.
Their argument was based in part on the fact that Righthaven, as a so-called copyright troll, didn’t use its copyrights for anything but lawsuits. They said Righthaven spotted infringements, later obtained copyrights to infringed material and then filed suit retroactively. In order to sue, these defendants said, Righthaven needed to own the copyright on the day of the infringement. And they said it needed full ownership of the copyright – not just rights to sue over accrued infringements.
And it was Hunt who was among the first federal judges hearing Righthaven lawsuits who upheld that right to sue on a retroactive basis, based on the supposedly "exclusive" copyright assignment provided to him by Righthaven.
"The (copyright) assignment in question clearly assigns both the exclusive copyright ownership, together with accrued causes of action, i.e., infringements past, present and future," Hunt wrote in a September ruling denying a Righthaven defendant’s motion to dismiss.
That ruling was cited by Righthaven in fighting subsequent dismissal motions, and with Hunt being the chief judge in Nevada it probably carried some weight.
Fast forward to today.
Righthaven has lost two of its lawsuits on fair-use rulings, faces a judge critical of its tactics in Denver and is dealing with some politically-connected attorneys pursing a heated counterclaim against it in South Carolina. It appears that in the South, those folks are pretty adamant that it’s not the gentlemanly thing to do to hit a nonprofit blogger with a $150,000, no-warning lawsuit.
Righthaven’s biggest problem currently, though, was Hunt’s ruling Friday unsealing the copyright-transfer arrangement between Righthaven and Stephens Media.
This Strategic Alliance agreement shows some things Hunt likely wasn’t aware of in September when he allowed the Righthaven suit to go forward.
Instead of having an "exclusive" copyright, Righthaven only obtained rights to file lawsuits. Everything else – the right to display and distribute stories, the right to choose who could and could not be sued, etc. – was retained by Stephens Media. Along with a 50 percent cut of lawsuit profits.
Hunt, of course, isn’t talking -- yet -- about whether the Strategic Alliance agreement undercuts his own ruling giving Righthaven the right to sue.
But he didn’t have much nice to say about Righthaven, Stephens Media and their attorneys in two orders Friday.
In rejecting arguments by attorneys for Righthaven and Stephens Media that attorneys for the Democratic Underground had been underhanded in trying to get the Strategic Alliance unsealed, Hunt called some of their language in court briefs "very unprofessional" and wrote: " There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here."
In another order, it appears he was noting the irony of Righthaven trying to get out of its suit against the Democratic Underground with Righthaven paying no attorney’s fees to the Democratic Underground and the Democratic Underground not even winning a fair-use declaration – for four paragraphs of a 34-page Review-Journal story.
"Righthaven and Stephens Media have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar, with defendants who do not want to incur the costs of defending the lawsuits, (and) are now offended when someone has turned the tables on them and insisting on a judgment in their favor rather than a simple dismissal of the lawsuit," Hunt wrote.
At issue in that order was whether the Democratic Underground would be able to beef up its legal arguments against Righthaven based on the newly-discovered Strategic Alliance agreement.
Righthaven has said this newly-disclosed evidence does not undermine its lawsuits, but Hunt wrote it "goes to the very heart of this litigation."
But that wasn’t the end of the drubbing by Hunt of Righthaven. In another case last week, he threw out Righthaven's standard lawsuit demand that defendants forfeit their website domain names – widely seen as a settlement-negotiating tool – and said there may be merit to claims Righthaven doesn’t have the right to claim attorney’s fees in its lawsuits.
It’s not over yet for Righthaven, of course. Its attorneys will likely be filing briefs explaining why Hunt was right back in September to uphold its right to sue and will cite lots of case law.
But then, U.S. District Judge James Mahan commented during a hearing that attorneys can find case law to back up pretty much any argument.
That was before Mahan rejected Righthaven’s case-law citations and ruled a Portland, Ore., nonprofit was protected by fair use in posting a Las Vegas Review-Journal story for which Righthaven claimed to own through a copyright transfer.
The Electronic Frontier Foundation and its affiliated attorneys who represent the Democratic Underground are the ones who got Hunt to unseal the Strategic Alliance agreement, and they’re eager to deal with whatever arguments Righthaven makes about the contract.
Stephens Media has some explaining to do as well, EFF attorney Kurt Opsahl said in an online post Monday.
"In short, the (copyright) 'assignment' is a sham, Righthaven’s claim has been baseless from the outset. Stephens Media, which has struggled to hold the litigation at arms length, is the true and exclusive owner of the copyright and the only entity with standing to bring a copyright claim," Opsahl wrote.
"So why didn’t the public know this until now? Stephens Media and Righthaven have gone to great lengths to conceal their scheme, starting long before they challenged our request to unseal their business agreement.
"In the Nevada Federal Court, Righthaven is required to list all the entities who have a `direct, pecuniary interest’ in the outcome of lawsuit – i.e. everyone who is going to make money if Righthaven wins – right at the beginning of the lawsuit. Righthaven, however, omits to mention Stephens Media even though the agreement splits the recovery 50/50 with the publisher," Opsahl wrote.
We’ll let you know when Stephens Media and Righthaven attorneys file the next set of briefs that observers say will be critical in either salvaging Righthaven’s existing lawsuits over Review-Journal material – or seeing them dismissed on a mass basis.
In the meantime, this is far from the only issue Righthaven is facing.
It’s trying to fend off attorneys for the Media Bloggers Association and claim some lawsuit winnings from defaulting defendant Bill Hyatt. That case could be crucial in determining how much exactly a Righthaven lawsuit is really worth.
And yet another Colorado Righthaven lawsuit defendant over a Denver Post TSA photo is fighting back.
This time, the defendants, Q Communications Inc. and Don Tuthill (passportmagazine.com), represented by Denver attorney Dwight L. Pringle, are hitting Righthaven with defenses we’ve heard before: "Defendants’ use of the purported work was protected by the fair use doctrine… Plaintiff is not the exclusive owner of the purported work and may not be the real party in interest... Plaintiff is engaged in a champertous scheme and should not benefit there from."
We’ve heard the champerty charge before from, among others, attorneys for the Democratic Underground who charged in their counterclaim: "Righthaven and Stephens Media are engaged in 'barratry,' 'champerty' and 'maintenance' by spawning transactions designed for no purpose other than to pursue litigation."
Stephens Media and Righthaven, however, say their lawsuits are necessary to stop rampant online infringement of Review-Journal material.
One can't help but think that Gibson was asleep during his class when they covered the principles of "equity" and how our judicial system draws heavily upon English common law. To this day attorneys will cite case law from hundreds of years ago to bolster an argument, especially those in equity.
Tradition is a powerful concept in our legal system, and judges, more than any other group, rely heavily upon it. Righthaven and Stephens Media are about to get a lesson in it that would make Tevye proud.
Least we not forget that it was the news rag the RJ that also created this unnecessary mess.
It's amateur hour again at the RJ. What else is new?
These are the same clowns who used their position as Nevada's largest newspaper to try and sway the reelection of Sen. Reid. Their bogus Mason-Dixon polls, one after another published in huge front page headlines, showed crazy Angle winning by 5-7%.
Hopefully the whole rats nest will be exterminated.
Righthaven has shut down their website (or its been hacked) http://righthaven.com. Many of their lawyers have already jumped ship. Righthaven may already be preparing to shut down. They can't shut down completely though. They have scores if not hundreds of lawsuits. counter-suits, and class-action suits along with possible criminal investigations and judicial sanctions along with their master Stevens Media to contend with for years to come.
Stevens Media may have created Righthaven as a throw away company for just this contingency but they can no longer separate themselves from the liability. Stevens media is in BIG trouble. They may not survive this as a corporation.
The Righthaven rats need to be exterminated.
The Righthaven domain was suspended due to invalid Whois information. It appears that they did not use full and correct contact information when registering their domain and someone called them on it.
Righthaven has not shut their domain down, GoDaddy has suspended the domain.
Better have your ducks in a row when you call his much negative attention to yourself.
Chunky asks:
Could it be that Judge Hunt originally allowed the good'ol boy network of lawyers to bully their way through the system and defendants "business as usual"? Why didn't Hunt research and perform due diligence back then?
Only now that a third party friend of the court and other judges and lawyers are discovering irregularities Judge Hunt is forced to become more proactive in the case.
Regardless, if Righthaven and Stephens Media/RJ have deceived the courts, they should be dealt with in the harshest way possible following the same philosophy they used against their victims.
That's what Chunky thinks!
Yes Chunky
They deserve to have the same mercy and consideration they have shown to their victims.
Righthaven, meet my little friend KARMA.
That's what Ken thinks!
Chunky, you are correct again. This is a "good old boy" neighborhood in more ways than this. Every now and then the predator becomes prey. It's called irony in ancient literature and Karma in eastern philosophy. In the 'hood we say, "What goes around comes around".
My Commentary on Righthavenvictims.blogspot.com
Righthaven, Meet My Little Friend Karma.
http://righthavenvictims.blogspot.com/20...
Chunky always the one for the obvious. If you actually knew anything about law you would know the a judge leans heavily on case law presented by an attorney.The problem is no one deals with unscrupulous attorneys, they simply move on and keep on lying. Give Hunt the credit he deserves when the relevant legal facts were produced he acted.
"...a judge leans heavily on case law presented by an attorney."
I'd add that once a judge discovers he's been deceived by an attorney or law firm, that attorney's or law firm's credibility in the court is gone. Not only with that judge, but with all his/her colleagues as well.
Additionally, somebody should be going after Steve Gibson's license and getting him disbarred.
Wrote a while ago that the RJ would have been far better served dedicating assets used to protect online content, to producing better online experiences/content for their users. Looks like I might have been right.
Come on RJ, take the funds you burn chasing shut in bloggers and empower your people to create something new. Who knows, maybe you'll come up with the next Groupon. You certainly have the resources to bring to bear.
Wagon circling gets you nowhere. Try something new.
ReichKlaven is beautiful because it represents the kind of "trap-gun" capitalism feudal Barons would exercise over their estates, and the way Stephens Media views a "mom and pop" website.
When staving peasant would inadvertently trespass on the feudal Baron's Estate to capture game, the overseer would rig a "trap-gun" to kill or cripple the "trespasser."
Judge Hunt is a good judge and no one at Righthaven is part of any good-old-boy network. Sometimes judges take factual assertions made in sworn pleadings at face value. When the judge learns those statements are lies, the attorneys shouldn't expect any leeway in the future.
I wonder how long Dickson-Wright will want to keep Steven Gibson around? Maybe he was told by them to divest himself of Righthaven.
I was under the impression that non-attorneys can hold an interest in a law firm. If Righthaven is in-fact a law firm, how can Gibson be partnered with Stephens Media as co-owners?
Righthaven also failed to disclose Stephens Media's 50/50 interest in court documents that required to list all parties that stood to benefit in the law-suit.
"Righthaven ... failed", 'nuff said.
where is sgt.rock? loser...hahahaha
I don't think the earlier decision saying that if you actually buy the complete copyright, you also get the rights to bring cases for past or future infringement. If I buy a property and discover someone did some minor vandalism a few days before closing, I think I can still sue them. The right goes with the property.
Righthaven seems to have only rented the right to bring lawsuits for a 50/50 split. Shades of the foreclosure robosigning allonge lost docs mess. If they actually sold the copyrights, or even if the holder was merged or acquired, the rights would still be there. But you can't be the plaintiff if you don't own the critical parts of the copyright. Ridgehaven might have acted as a lawfirm, but probably can't act as a plaintiff or principle.
Rock is hiding under a Rock. Maybe he is mustering up the courage to apologize to us all for supporting illegal activity perpetrated by Righthaven and Stephens Media.
We can only hope, but I am not holding my breath.
In the U.S., when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as "fraud upon the court", is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.
Take this times 250, and this is what this conspirators have done, in my opinion. There should be harsh punishment to Righthaven and Stephens Media.