Righthaven settles with Sharron Angle over R-J story posting

By Steve Green

Wednesday, Nov. 17, 2010 | 2:28 p.m.

Las Vegas copyright enforcement company Righthaven LLC has reached a confidential settlement of its online copyright infringement lawsuit against defeated U.S. Senate candidate Sharron Angle.

"Righthaven LLC and defendant Sharron Angle, by and through their attorneys of record ... hereby notify the court that they have resolved their differences and hereby stipulate to a voluntary dismissal, with prejudice, of all claims asserted against Ms. Angle," said a stipulation filed in federal court in Las Vegas on Tuesday by attorneys for Righthaven and Angle's attorney in the case, Patrick Byrne of the law firm Snell & Wilmer.

The settlement was expected.

Righthaven is the Las Vegas Review-Journal's copyright enforcement partner and even after Angle was sued Sept. 3 she was endorsed by the Review-Journal over Senate Majority Leader Harry Reid.

And on Oct. 8, Byrne and Righthaven attorneys filed court papers saying "The parties agree that they would like to explore a potential negotiated resolution before proceeding further with formal discovery."

Angle, who was sued personally, was accused of posting without authorization Review-Journal material on her campaign website. Because of the settlement, neither she nor her attorney ever filed a formal response to the copyright infringement allegations.

Separately, Righthaven sued three more website operators this week over allegedly unauthorized posts of Review-Journal material, even as critics sounded off with new complaints about the company's legal tactics generally involving no-warning lawsuits.

The latest suits alleging copyright infringement were filed in U.S. District Court for Nevada this week against:

• VXPOSE LLC, Arthur Kalandarov and Robert Sulimanov; whom Righthaven says are associated with the website wickesfurniture.org, where material from the Review-Journal allegedly was posted Oct. 23.

• Bert L. Howe & Associates Inc. and James Howe; both allegedly associated with the website constructiondefectjournal.com. Righthaven charges Review-Journal material was posted on that site on Oct. 12.

• Viewwerx, Inc. and Shawn Herrin, who allegedly have a website called bloodyflix.com, where Righthaven says Review-Journal material was posted without authorization on Nov. 1.

"The defendants did not seek permission, in any manner, to reproduce, display, or otherwise exploit the work (story)," Righthaven charged in each of the lawsuits, which as usual seek damages of $150,000 apiece as well as forfeiture of the website domain names to Righthaven.

Howe declined comment on the suit against him Wednesday and messages for comment were placed with the other two defendants.

These bring to at least 170 the number of copyright infringement lawsuits filed since March by Righthaven.

Righthaven detects online infringements to Review-Journal stories, obtains copyrights to those stories and then sues over the alleged infringements on a retroactive basis. The lawsuit campaign has attracted national attention because it's a departure from the usual newspaper industry practice of trying to resolve copyright infringement issues out of court.

One of the Righthaven defendants sued last week, Robert Zumbrunnen, said Wednesday he plans to fight the suit against him.

Righthaven says Zumbrunnen, along with TZ Holdings LLC and Peter Dierks, are involved with a website called siliconinvestor.advfn.com. That's where Review-Journal material allegedly was posted on a message board by Dierks on Aug. 24 without authorization.

In its suit, Righthaven claimed: "The defendants knew, or reasonably should have known, that websites, such as (their's), are the habitual subject of postings by others of copyright-infringing content," but didn't do anything to prevent such postings, monitor for them or quickly remove them.

But Zumbrunnen said Wednesday he would have removed the material had the Review-Journal or Righthaven -- rather than suing him -- used the tools on his website to alert him to the alleged copyright violation.

"I'm really as aggressive about this issue as I can be. But I can't, as they whine that I didn't, read all of the thousands of messages posted every day, devoting what would amount to every waking minute (only to fall further and further behind), rather than little things like operating the site as a business," Zumbrunnen said in an email. "It's obvious they don't really want a fight. Unfortunately, I rather enjoy a knock-down drag-out and they did swing first.

"They've been scratching out a living catching minnows in nets and have decided to test deeper waters with me. Or they have no clue that they're trying to intimidate not the average blogger here, but a grey-bearded guy who's been around the block more times than he can count.

"The average blogger is likely not very well-versed in the legal realities of online publishing, so my guess is they're hoping that I'm also not, and further hoping I have deep enough pockets to help line theirs but not deep enough to pay the real sharks (lawyers) to take care of these things.

"They chose poorly. There will be no settlement.

"If need be, I won't bat an eye at spending a multiple of any proposed settlement amount in the interest of defending myself and making an example of these folks, because it's very simply the right thing to do," Zumbrunnen concluded.

Also, copyright law expert and Righthaven critic Eric Goldman of Santa Clara University is criticizing Righthaven for the way it's trying to drop its lawsuit against the Democratic Underground over a message-board user posting four paragraphs of a 34-paragraph Review-Journal story.

Righthaven, in court papers this week, said "reasonable minds may disagree as to the legitimacy of a fair use defense." That was after a federal judge in another case found the copying of eight sentences of a 30-sentence story was protected by the fair use concept of copyright law.

Righthaven is seeking to drop its Democratic Underground case, but doesn't want to pay the Democratic Underground's legal fees. The Democratic Underground is represented by the freedom of speech group Electronic Frontier Foundation.

Goldman, associate professor at Santa Clara University's school of law and director of the High Tech Law Institute there, said: "There should be no graceful exit from this travesty by Righthaven."

Goldman was critical of Righthaven's claim that "it has been Righthaven's pattern and practice to minimize judicial resources at every level by trying to effect reasonable settlements."

"If they wanted to make this statement true, maybe they should send settlement offers before suing defendants and consuming judicial resources with complaints that could have been avoided if they just talked with the defendants first," Goldman said in an email.

"Righthaven is basically saying 'Please please please, judge, let us get out of our own lawsuit -- the one we initiated -- without any consequences because we're more likely to lose.'"

"However, Righthaven could very well learn that their choices do have consequences, and they can't just walk away from those consequences because they wish to live in a consequence-free world," Goldman said.

The EFF hasn't yet indicated if it will go along with dismissal of the suit as well as the EFF's counterclaim against Righthaven and Review-Journal owner Stephens Media LLC.

"A judge should not force settlement terms on the defendant by giving the conditional dismissal," Goldman said.