Righthaven continues suits over R-J copyrights; 91 total

Attorneys for a Las Vegas law firm continue to attack a copyright infringement lawsuit campaign involving Las Vegas Review-Journal stories, saying it's a "massive cash grab" aimed at coercing settlements from small website owners throughout North America.

The Review-Journal has partnered with a Las Vegas company, Righthaven LLC, to have Righthaven file no-warning copyright infringement lawsuits against owners of websites that post R-J stories without authorization. The suits typically demand $75,000 in damages and forfeiture of the defendants' website domain names.

Through Friday, 91 Righthaven lawsuits had been filed in U.S. District Court in Las Vegas. Court records indicate 18 of the suits have been settled under generally undisclosed terms -- and that more settlements are in the works. The only publicly-reported settlement amounts for two cases were $2,185 and $5,000, respectively. In these settlements, the defendants have been able to keep their domain names.

In many of the cases, "mom and pop"-type website owners and bloggers are defending themselves, finding it cheaper to settle than to hire an attorney to litigate the cases.

But in a few cases, attorneys are fighting back and one of the more aggressive defenses is being mounted by lawyers with the Las Vegas office of the law firm Lewis and Roca LLP, which has one of the busier intellectual property practices in town.

A case involving Lewis and Roca client MajorWager.com, a one-man company based in Montreal, is shaping up to be test of the validity of the Review-Journal/Righthaven litigation strategy.

In its April 7 lawsuit against MajorWager, Righthaven claimed MajorWager copied and displayed without authorization 14 R-J sports stories, including one from March 18 for which Righthaven obtained a copyright for on March 29 -- after it appeared on the MajorWager site. The copyright was transferred to Righthaven from Stephens Media LLC, owner of the Review-Journal.

Court records show entire R-J and Las Vegas Sun stories were posted on the website, not just links, and that the R-J and Sun were credited as the source of the stories.

(The policy of the Sun and the rest of Greenspun Media Group is not to sue copyright infringers, but rather to request that Sun and other Greenspun Media stories be taken down and be replaced with links. Besides the links, Greenspun Media allows websites to use text totaling as much as 100 words or 10 percent of a story, whichever is less.)

In initially responding to the MajorWager suit June 1, Lewis and Roca attorneys said it was "arguably frivolous" and "nothing more than a thinly disguised shakedown."

In a June 28 filing, Lewis and Roca said: "It is not an exaggeration to say that this case borders on being frivolous. In fact, that has been the consensus of the substantial media coverage given to the now 47 Righthaven lawsuits currently pending before this court."

"These lawsuits are based upon the posting of Las Vegas Review-Journal articles on websites often, as in this case, by third parties, to further their own personal interest in an online discussion about a particular topic. Also in many cases, including this one, the allegedly infringing posts either give credit to the R-J or link right back to it. In addition, most of these suits, again, including this one, were filed by Righthaven without even notifying the defendants or providing them with an opportunity to remove the allegedly infringing articles.

"This strongly suggests that these suits were filed, not for the legitimate purpose of enforcing copyrights, but rather, to coerce several settlements as part of a massive cash grab facilitated by judicial process," the Lewis and Roca filing said, adding the stories at issue can be found for free on the R-J website by Googling for them.

"The R-J even encouraged visitors to download or distribute the article electronically via email," the attorneys wrote. "In addition, the R-J’s website does not impose any terms or conditions on the viewing, copying, or distributing of articles posted on the website. In short, there is nothing to indicate that the articles cannot be freely copied or distributed and, in fact, the R-J’s own website encourages users to do exactly that," the Lewis and Roca filing said.

In backing up its argument that media coverage has found the Righthaven lawsuit initiative to be frivolous, Lewis and Roca attorneys filed three stories with the court about Righthaven from technology, law and media websites Techdirt.com, the Blog Law Blog and MediaPost.com. The Techdirt and MediaPost reports were critical of Righthaven.

The Lewis and Roca filing didn't include any stories from the Las Vegas Sun on Righthaven.

Righthaven, in firing back at Lewis and Roca and Lewis and Roca's assertion the Nevada court lacks jurisdiction over MajorWager, said in a court filing: "MajorWager's reliance on Righthaven-related media articles to support its jurisdictional argument exemplifies the futile, legally groundless nature of MajorWager's position."

Righthaven submitted to the court a July 9 Las Vegas Sun story on the Democratic Party of Nevada and other websites being sued that day by Righthaven. At that time, 64 Righthaven suits had been filed. The Sun story included links to previous Sun stories on the Righthaven lawsuits.

"MajorWager's attachment of three, hand-picked, Internet-based 'articles' commenting on Righthaven's legal activities hardly represents a fair and balanced view of the media coverage. Furthermore, while MajorWager states that Righthaven's lawsuits have garnered 'substantial media coverage,' such coverage is largely attributable to the Las Vegas Sun, which has published no less than 17 Righthaven-related stories since March 17, 2010. Importantly, the Las Vegas Sun has historically and arguably been a direct competitor of the Las Vegas Review-Journal and thus, is a highly impeachable source," Righthaven's filing said.

Besides the stories mentioned in the court filings, Righthaven has been covered by the Los Angeles Times, Wired.com, Reason.com and numerous media and legal blogs.

Righthaven in court papers also defended its litigation strategy as being necessary to protect the financial interests of the newspaper industry.

"The decline of newspapers nationwide has coincided with the rise of the Internet, and thus coincided with the rise of Internet-based copyright infringements such as those committed by MajorWager," Righthaven's filing said.

"While Righthaven is certainly not suggesting that the Las Vegas Review-Journal is facing an imminent demise, the Las Vegas Review-Journal – like every other newspaper – is nevertheless at risk due to the disturbing trend of Internet-based copyright infringements. Moreover, if newspapers fail to adopt solutions similar to that provided by Righthaven to protect their copyrights, there is no reason to believe that the outlook for these newspapers will be improving any time soon," Righthaven's filing said.

The latest dustup between Lewis and Roca and Righthaven, which is led by Las Vegas attorney Steven Gibson, is over Righthaven's request to the court that it be allowed to conduct discovery including taking depositions from MajorWager CEO Russ Hawkins and "CLEVFAN," a MajorWager user who allegedly posted the R-J stories at issue in the lawsuit. Righthaven has asserted CLEVFAN is a MajorWager employee, Lewis and Roca says he's a former employee.

Righthaven also wants permission to make five document production requests of MajorWager and for five interrogatories -- written questions and answers -- of MajorWager.

Lewis and Roca attorneys Michael McCue and Jonathan Fountain on Wednesday filed court papers opposing Righthaven's discovery plan, calling the allegations in the Righthaven lawsuit "empty, threadbare and conclusory."

In arguing the Nevada court lacks jurisdiction, the Lewis and Roca filing said MajorWager has had no contact with Nevada and since the stories were posted not by MajorWager but by the former employee, "plaintiff's request for jurisdictional discovery is utterly futile."

"Nevertheless, Plaintiff seeks to correct its failure to conduct any pre-litigation investigation into the existence, (or non-existence), of jurisdictional facts at MajorWager’s expense. On this extremely thin record, in addition to being burdensome and expensive, jurisdictional discovery is nothing short of harassing," Lewis and Roca's filing said.

"Plaintiff’s request for jurisdictional discovery is nothing more than a last-ditch fishing expedition made not for the proper purpose of advancing this case to trial, but rather, for the improper purpose of driving up MajorWager’s legal fees and pressuring it to settle," the Lewis and Roca attorneys wrote.

"Even if plaintiff were to prevail on the merits, because plaintiff offered the article to the world on its own website for free, it has not suffered any actual damages. Plaintiff would be entitled, at most, to statutory damages ranging from $750 to $30,000. Given the de minimis (minimal) nature of the alleged infringement, it is doubtful that the court would award a significant amount of statutory damages.

"Thus, the amount in controversy is minimal, probably somewhere around $750. With respect to ... the parties’ resources, MajorWager is a one-person company. It does not sell any goods or services. It does not operate at a profit. Its resources are limited and dwarfed by Righhaven’s -- a company 'grubstaked' by the Las Vegas Review-Journal," the attorneys added.

The judge assigned to the case hasn't yet ruled on the discovery issue or set a hearing on the dispute.

Righthaven, in the meantime, sued five more website owners Thursday and Friday, alleging copyright infringement over the posting of R-J stories on their websites and seeking damages of $75,000 apiece.

They are:

--The Center for Intercultural Organizing and its executive director, Kayse Jama. The nonprofit in Portland, Ore., says it was founded by Portland-area immigrants and refugees to combat widespread anti-Muslim sentiment after 9/11. It now works to strengthen immigrant and refugee communities through education, civic engagement, organizing and mobilization. Jama said he had no immediate comment on the lawsuit, which says his group's website posted without authorization a June 28 R-J story about Las Vegas police referring immigrant misdemeanor crime suspects to federal officials for potential deportation. The R-J was credited as the source of that story, a court exhibit shows.

--Second Amendment Sisters Inc. and two officials there, Marinelle Thompson and Lee Ann Tarducci. Based in Lakeway, Texas, the nonprofit group says on its website: "Second Amendment Sisters Inc. is a women's advocacy group dedicated to preserving the basic human right of self-defense, as recognized by the Second Amendment. We believe in personal responsibility, education, and enforcement of laws against violent criminals."

A request for comment was placed with the Second Amendment Sisters, accused of displaying on its website an R-J story from May 17 about a Las Vegas store clerk who died after being shot by a robber -- but managed to shoot and kill the robber before dying. The R-J was credited as the source of the story on the Second Amendment Sisters website, court records show.

--Alan Potasnik and Tom Johnson, whom Righthaven says are associated with the website rollcallamerica.com. It allegedly posted an R-J editorial about the "Obama-Reid agenda." A message for comment was left with Potasnik, Johnson couldn't be located.

--Ronald Baxter and entities he allegedly is associated with called TEB Media and Buy Dog Beds. The story on the slain store clerk was posted on the www.buydogbeds.org website, the lawsuit alleges. A message for comment was left with Baxter.

--Margaret Soltan, an English professor at George Washington University in Washington, D.C. Soltan, who has a blog called ``University diaries'' about American university life, allegedly posted on her website an R-J story about a UNLV assistant football coach who had been charged with trespassing and prohibited use of weapons in Colorado. Soltan said Friday that she did not post the story at issue, but rather quoted some paragraphs from it and posted them with a link to the original story. "Because I feel harassed and intimidated by the lawsuit, I have removed the post. My blog is educational, non-commercial, and includes a long-running critique of university sports, of which this post is clearly a part," she said.