Righthaven pressing for right to seize website domain names

By Steve Green

Friday, Dec. 3, 2010 | 2:05 a.m.

Las Vegas newspaper copyright enforcement company Righthaven LLC and its critics now agree on one thing: There is no basis in U.S. copyright law for forfeiture to Righthaven of infringing defendants’ website domain names.

But that’s where the agreement ends, with Righthaven still insisting federal judges as a matter of equity have the authority to seize those domain names and hand them over to Righthaven.

The issue of domain name seizures has been controversial as critics say Righthaven uses this threat — along with the prospect of lengthy, expensive litigation — to convince the website owners it sues they should settle. These threats are on top of defendants having to worry about statutory damages of up to $150,000 should they fight Righthaven and lose.

Righthaven is the Las Vegas Review-Journal’s copyright enforcement partner that since March has sued at least 179 website owners in North America and Europe, charging material from the Review-Journal was posted on their websites without authorization.

The suits, typically filed without warning, are a departure from the usual procedure in the newspaper industry of asking or demanding that infringing material be removed and/or replaced with links.

The issue of seizing domain names hasn’t yet been addressed by any of the Nevada federal judges hearing Righthaven cases, but attorneys for a few defendants have attacked it head-on.

Attorneys for Righthaven this week responded to one such challenge, which was posed by attorneys with the electronic privacy and freedom of speech group Electronic Frontier Foundation (EFF) on behalf of former federal prosecutor Thomas DiBiase.

DiBiase has a website covering “no body” murder cases. Those are cases that are investigated and prosecuted in which the victim’s body hasn’t been recovered, and a Review-Journal story about one such case was posted on DiBiase’s site.

As for Righthaven’s request for “surrender” of DiBiase’s website, Righthaven this week said in reply papers that “Righthaven concedes that such relief is not authorized under the Copyright Act. That concession aside, Righthaven maintains the court is empowered to grant such relief under appropriate circumstances.”

Citing the Federal Rules of Civil Procedure and case law, Righthaven’s attorneys wrote: “It cannot be disputed that federal courts are authorized to freeze assets in the aid of ultimately satisfying a judgment in a case. Such action may be taken pursuant to federal law or state law. The freezing or seizure of assets may be warranted where damages are sought in addition to equitable relief.”

“In fact, a district court may freeze assets before trial to secure the payment of attorney’s fees,” Righthaven’s attorneys asserted.

Righthaven’s attorneys noted that in this case, “it has not ascertained whether transfer of the website is appropriate at any stage of the proceedings or if it will ultimately ask the court for such relief.”

Righthaven attorneys also disputed DiBiase’s contention that Righthaven can’t seek to recover its attorneys fees from him.

His attorneys with the EFF had argued the Supreme Court has held that statutory attorney’s fees are only available where there is an independent attorney-client relationship, and that Righthaven was a “made-for-litigation entity that was set up and is run by the very lawyers who are prosecuting cases on its behalf.”

But Righthaven says its claim for attorneys fees is warranted. Since the suit was filed, an outside attorney, Shawn Mangano of Las Vegas, has signed on to represent Righthaven in the case.

“That said, Righthaven certainly does not concede in-house fees are unrecoverable in this action. In fact, Righthaven maintains that in-house fees are recoverable,” Righthaven’s attorney argued.

In a counterclaim against Righthaven, EFF attorneys for DiBiase charged: “This case is part of series of abusive lawsuits filed by Righthaven in furtherance of its business model of purchasing copyrights to news articles, and then filing copyright lawsuits against individuals and small entities, using the threats of statutory damages, domain name seizures and attorneys fees to force settlements, even when, as in this case, the defendant has not infringed the copyright.”

But attorneys for Righthaven in filings this week called that “merely a self-serving, factually inaccurate diatribe asserted purely for scandalous purposes and which have no bearing on the merits of the claims or defenses before the court.”

DiBiase’s attorneys with the EFF also argued the posting of the Review-Journal story was protected by the fair-use concept of copyright law.

They said DiBiase’s nonprofit site performs a public service by helping to bring justice to families of murder victims.

Attorneys for Righthaven, in responding, said that DiBiase’s work assisting prosecutors and homicide investigators in bringing justice to friends and families of “no body” murder victims “is a commendable civic-minded goal.”

“Righthaven denies, however, that this societal benefit should come at the expense of violating the exclusive rights granted to the holders of copyright protected works or that DiBiase’s alleged goal could not have been accomplished with the grant of consent for republication, which was never sought by him,” Righthaven attorneys wrote in their filing.

Righthaven also said that DiBiase, given his education in the law, should have known better than to reproduce an entire Review-Journal story without authorization.

Righthaven’s responses this week were filed by Mangano and attorney J. Charles Coons, assistant general counsel at Righthaven.