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September 1, 2014

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Settlement reached after judge refuses to dismiss copyright suit

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Las Vegas copyright enforcement company Righthaven LLC won a legal victory in one of its lawsuits Tuesday when a federal judge refused to dismiss the suit.

U.S. District Judge Philip Pro rejected a defendant’s argument that the case should be dismissed because Righthaven didn’t own the copyright to the story at the time of the alleged infringement.

This was the first ruling on a contested dismissal motion by any of the federal judges assigned to the 107 Righthaven lawsuits filed in U.S. District Court for Nevada in Las Vegas since March.

Righthaven is a Las Vegas company that attempts to profit by detecting online copyright infringements of Las Vegas Review-Journal stories, buying copyrights to those stories and then suing the infringers on a retroactive basis.

Several defendants have asked that the lawsuits be dismissed because Righthaven didn’t own the copyrights at the time the Review-Journal material was re-posted on their websites.

Righthaven’s CEO, Las Vegas attorney Steven Gibson, says that in obtaining the copyrights to the stories from the Review-Journal’s owner Stephens Media LLC, Righthaven gains the right to sue for prior infringements.

Gibson told Pro on Tuesday that the right to sue over past infringements has been upheld by other courts and that attorneys for several of the Righthaven defendants have conceded that point in defending against Righthaven’s suits.

In a hearing in a Righthaven case against mixed martial arts company Tuff-N-Uff Productions Inc. of Las Vegas and company President Barry Meyer, Pro rejected Tuff-N-Uff’s motion for dismissal in which Tuff-N-Uff said Righthaven lacked standing to sue because of its lack of ownership of the copyright at the time of the infringement.

Pro noted that his ruling on this “standing issue” was only for purposes of dealing with the motion to dismiss and that the rights associated with the transfer of the copyright could be explored later in the case during discovery or other proceedings.

“I’m not bothered by the ‘standing’ issue,” Pro said.

There will be no discovery, however, as Righthaven reached a confidential settlement with Tuff-N-Uff after the hearing.

“We’re very pleased all sides were reasonable and reached a settlement,” Meyer said.

The Tuff-N-Uff case began May 27 when Righthaven filed suit over a March 2 Review-Journal story involving a Tuff-N-Uff fight that allegedly was posted on the Tuff-N-Uff website.

Tuff-N-Uff officials, who had no attorney, were told by Pro on Tuesday that Tuff-N-Uff would need to obtain an attorney if the case proceeded because companies can’t represent themselves in court.

The Tuff-N-Uff officials, in court papers filed prior to the hearing, had said they tried to settle with Righthaven this summer for $500 but were turned down.

Gibson, however, told Pro that Tuff-N-Uff’s communications to him included a demand that Gibson pay money to Tuff-N-Uff. Later, he said, Tuff-N-Uff offered to settle for $100.

Righthaven, which demands $75,000 in its lawsuits and forfeiture of the infringing defendants’ website names, usually settles for thousands of dollars and allows defendants to keep their domain names.

The settlement came despite harsh criticism Tuff-N-Uff had leveled at Righthaven in court papers prior to the hearing.

In a June 24 motion to dismiss the suit, the defendants said the story in question was not authored by Righthaven but instead “is aggregated from various sources.”

“When an entity such as Tuff-N-Uff subscribes to certain news feeds, they are provided with links from the subscribers’ website to the full text of the articles,” Tuff-N-Uff wrote, adding the version of the story on the Tuff-N-Uff website provided full credit to the Review-Journal and its reporter.

“Thus no copyright infringement occurred,” the company filing said.

In a later filing, the Tuff-N-Uff defendants said they’d offered to “cease and desist, profusely apologize and even pay $500.”

In that filing, on July 23, Tuff-N-Uff said it interviewed several attorneys who suggested “an expeditious settlement for a nominal value would be less expensive than retaining lawyers” — something many Righthaven defendants have found to be true.

After Righthaven rejected the $500, Tuff-N-Uff continued to press its arguments, charging:

“Given the nominal, insignificant and one-time publication, defendants reasonably believed that a cease and desist and $500 would suffice...Defendants believe they have meritorious defenses including the failure of plaintiffs to own the copyright and reference to the article published...

“Defendants have reason to believe that there may be a pattern of harassment or antitrust violations in trying to quash competitive enterprises, chill free speech or (there may be) other defenses,” Tuff-N-Uff wrote.

But Gibson told Pro that if the case proceeded, Tuff-N-Uff had no possibility of succeeding on the merits.

Burton Meyer, a director of Tuff-N-Uff who tried to speak for the company, said he came to the hearing not to argue but solely to achieve a reasonable settlement with the court’s help.

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  1. I would love to serve on the jury, or any jury that would handle this case .... ain't no way in hell I would find any defendant guilty .... as someone else said, this is BS ..... makes one want to take a copy of the Review Journal and crap all over it.

  2. Jon Ralston published a blog entry today with the following title: Angle: "We won't be shouted down by Chris Matthews, Keith Olbermann and Rachel Maddow" ( http://www.lasvegassun.com/blogs/ralston... )

    In that piece he quotes extensively from the R-J.

    It will be interesting to see if the Sun or Ralston gets sued by Righthaven.

    Of even more concern to me is the fact that I run a website that uses the Sun's RSS feed (with written permission) to direct users to the Sun. One of the feeds I use is the one for Ralston's column. I do not re-publish the articles themselves, the feed contains only the headline, the first couple of sentences, and a link to the story.

    Does that make me a potential target because Ralston may or may not have infringed on a copyright?

  3. botox.....I think you have been tricked by Ralston. He did not do it on purpose. It was his poor writing skills that tricked you. Ralston is not quoting extensively from the R-J. He is quoting an email that was sent by Angle to her supporters of which she is relying on LVRJ editorial as backup for her claims.

    Perhaps, you should send a complaint to Ralston.

    If all you are doing is linking, listing a headline and a few sentences then that is not copyright infringement to the Sun or even if the Sun article was copyright infringement.

    But if you copied and pasted all or significant part of LVRJ story then you would be sue for $75,000 and loss of domain name and you would lose in a court of law if you fought it to the end and did not accept a settlement.

  4. "There are better arguments including fair use, failure to notice, etc"

    Copying and pasting all or a significant part of copyright material is the exact legal opposite definition of fair user. If you go into court and claim that copying and pasting all or significant part of web site material from another site onto your own site is fair use then you will be laughed out of court.

    Failure to notice is not a defense for copyright infringement if the owner or a staff member posted the copyright material. It can only be used when a casual user posts copyright material in the comment section. Also the website must register contact information and pay a fee with the US Copyright office to demand take-down notices.

    "Few if any of the targets of the R-J suits are responsible for diminishing the value of the R-J's interests. This, in a word, is BS."

    That is how the law is written. It has statutory damages so the the owner of the copyright material does not have prove the amount of economic damage value. That is where $75,000 figure comes from. That part of the law was written to encourage or frighten people not to do copyright infringement in the first place.

  5. "Righthaven is a Las Vegas company that attempts to profit by detecting online copyright infringements of Las Vegas Review-Journal stories, buying copyrights to those stories and then suing the infringers on a retroactive basis."

    I got a kick out this sentence.

    So every story on courts should go like this...."OJ lawyer attempted to profit by defending OJ in a court of law." or "Lawyers suing tobacco companies attempted to profit by using sick people who smoked."

    Silly reporter......we all get it.

    The Sun and you hate the LVRJ.

    The irony is that Righthaven is actually helping the economics of every newspaper operation in the country and probably on a macro level helping people like Mr. Green keep his job.

  6. Nowhere does Ralston say that he is quoting an email, and the opening line of his piece could be construed as saying he is quoting an editorial piece from Angle.

    I agree that if Ralston is in fact quoting an email from Angle then he did a very poor job of writing and attributing his sources.

    I have a reasonable working knowledge of copyright law, but I am astounded by what has transpired lately and it would not surprise me to see Righthaven go after second and even third parties who have no control over what comes over an RSS feed. As I mentioned, I took the precaution of obtaining permission before using the Sun's RSS feed for headlines.

  7. I'm not surprised. All of the defendants violated the copyright law and I think that it'll get interesting when one of these goes to a full trial. I'm sure if the outcome of the actual trials is that predictable -- Federal Judges can pretty much do what they want -- All the defendants could get hit with $75,000 or buck. Who knows?

    I just think it's awful that this is continuing in such an uncivilized manner. I thought this article was pretty interesting: http://www.poynter.org/column.asp?id=136....

    I especially liked this quote: "Executives at other newspapers say take-down notices can easily resolve most copyright conflicts without litigation. "Generally we don't even do it through lawyers," said Seattle Times Executive Editor David Boardman, who is an officer of the American Society of News Editors. "Normally all it takes is a call or note or e-mail or letter to somebody just saying, 'Hey, you're in violation of our copyright. Please take it down.' More often than not, they do."