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Monday, Sept. 27, 2010 | 1:29 p.m.
Sun archives
- Executive says suing over R-J copyrights worth the negative publicity (9-26-2010)
- Lawyers argue R-J stories on Web aren’t protected by copyright (9-25-2010)
- Attorney: Righthaven copyright suits a free speech threat (9-23-2010)
- Observers note uncertainty over future of Righthaven/R-J copyright suits (9-21-2010)
- Righthaven judge: Review-Journal ‘implied license’ defense may have merit (9-20-2010)
- Defendants fight back against Righthaven copyright lawsuits (9-20-2010)
- Copyright lawsuit filed against group fighting Pahrump prison (9-15-2010)
- Righthaven settles 2 lawsuits over R-J story copyrights (9-13-2010)
- Another company fights back against copyright lawsuit (9-11-2010)
- Quick settlement reached in copyright lawsuit against PR company (9-10-2010)
- Texas woman emerges as vocal critic of copyright lawsuit firm (9-9-2010)
- Righthaven CEO defends company during roundtable discussion (9-9-2010)
- Copyright lawsuits filed against U.S. Marijuana Party, dating website (9-9-2010)
- Righthaven’s suit against Sharron Angle draws increased attention (9-8-2010)
- Defendant accuses Righthaven of misusing legal system (9-5-2010)
- Sharron Angle hit with R-J copyright infringement lawsuit (9-3-2010)
- Righthaven wins key ruling as new criticism leveled over suits (9-3-2010)
- Righthaven sues D.C.-based group over R-J editorial posting (9-2-2010)
- PR firm Kirvin Doak sued by Righthaven over Celine Dion story it promoted (9-1-2010)
- Why we are writing about the R-J copyright lawsuits (9-1-2010)
- Settlement reached after judge refuses to dismiss copyright suit (8-31-2010)
- Judge questions Righthaven over R-J copyright suit costs (8-26-2010)
- Consumer group offers help to defendants over R-J copyright suits (8-25-2010)
- Righthaven CEO’s law firm in merger (8-24-2010)
- R-J accused of entrapment over copyright enforcement (8-23-2010)
- Blogger asks to pay $200 to close R-J copyright suit (8-20-2010)
- 2 lawsuits over R-J copyrights lift total to 100 (8-19-2010)
- Website operators use new defenses to fight R-J copyright suits (8-18-2010)
- Righthaven reaches settlements in 2 cases over R-J copyrights (8-12-2010)
- Righthaven sues Democratic Underground website over R-J posting (8-11-2010)
- 5 more websites sued over R-J story copyrights (8-10-2010)
First came "barratry" and now comes "champerty."
These are the little-known legal concepts that defense attorneys are increasingly using in hopes of undermining the copyright infringement lawsuit litigation unleashed in March over online Las Vegas Review-Journal stories.
The Review-Journal's copyright enforcement partner, Las Vegas company Righthaven LLC, has sued at least 136 website owners throughout North America over unauthorized postings of Review-Journal material on their sites.
Court records show that in some cases, the material was posted by webmasters and in other cases it was posted by third-party message-board and forum users.
Generally all or substantial portions of stories were posted, though in a notable case against the political site the Democratic Underground, Righthaven sued after four paragraphs of a 34-paragraph story were posted.
With some exceptions, the Review-Journal was credited for the material and many of the unauthorized posts included links to the Review-Journal website.
It's obvious in most of the cases that someone re-posted Review-Journal material online without authorization, but defense attorneys say that doesn't necessarily amount to copyright infringement and they cite the concept of "fair use."
Some are also arguing the Review-Journal provides an "implied license" to re-post content since it encourages readers to share its content online -- an argument one federal judge has ruled may have merit.
One of the latest arguments, which judges haven't yet ruled on, involves the allegation of "barratry," or the excessive incitement of litigation. Defense attorneys say "barratry" supports their allegation that Righthaven comes to the lawsuits with "unclean hands" -- with unclean hands being a defense to copyright infringement suits.
This is related to Righthaven's procedure of obtaining Review-Journal copyrights weeks or months after the alleged infringement of the material covered by the copyrights -- and then typically suing without it or the Review-Journal trying to resolve the problem out of court. Newspapers generally in the United States ask or demand that infringing material be taken down or be replaced with links before resorting to litigation.
Righthaven has denied the barratry allegation, saying the lawsuits are necessary to deter rampant online infringement of Review-Journal material.
A newer defense strategy involves allegations of "champerty" -- allegations that the lawsuit arrangement between the Review-Journal's owner Stephens Media LLC and Righthaven is prohibited by law.
Stephens Media is controlled by the family of Arkansas investment banking billionaire Warren Stephens and one of the Stephens companies has invested in Righthaven.
Champerty, according to Jonathan Fountain, one of the Lewis and Roca LLP attorneys in Las Vegas defending Righthaven cases, is an arrangement where a party with no interest in a lawsuit agrees to finance and bear the expense of litigation in exchange for a portion of the proceeds.
"The doctrine originated in medieval England where the wealthy would assist poorer members of society by supporting their legal disputes with the wealthy citizen's personal or political enemies," Fountain wrote recently in an online post at lexology.com. "In return for funding the lawsuit, the party to whom the claim actually belonged promised to give his or her benefactor a stake in the outcome. Through this practice, the wealthy became wealthier."
"Champerty was prohibited at common law and is prohibited by Nevada law today," Fountain wrote in the post.
In at least two of the Righthaven lawsuits, Lewis and Roca is using the champerty defense against Righthaven.
"Stephens Media’s 'reversion rights' within the copyright assignment raise serious questions as to what rights Righthaven actually has in the copyrighted work (story), and how meaningful those rights are," Lewis and Roca attorneys John Krieger and Nikkya Williams wrote in court papers this month in the case of a Righthaven defendant in Lehi, Utah, called Vote for the Worst LLC.
Part of an April 11 Review-Journal story about American Idol contestants visiting Las Vegas was posted without authorization at that site, court records show.
"All of the rights Stephens Media assigns to Righthaven are 'subject to the assignor’s rights of reversion,' which are not specified anywhere in the assignment. This raises serious questions about what rights Righthaven actually has to sue (the Vote for the Worst) defendants and those similarly situated, as it could be paying Stephens Media for the bare right to sue for copyright infringement, with those rights reverting back to Stephens Media once Righthaven has recovered a settlement or judgment from the affected defendants. In fact, the wording of the purported transfer seems to indicate that the sole purpose of assigning the copyrights is to give Righthaven technical legal standing to pursue infringements on rights that, in all actuality, still belong to Stephens Media. Such arrangements are prohibited as champertous under Nevada law," the attorneys wrote.
"The wording of the assignment itself implies nothing less than a champertous agreement. Stephens Media agrees to let Righthaven enforce Stephens Media’s rights, but without an acceptable attorney-client relationship, and Righthaven agrees to provide services and money in return for prosecuting a lawsuit. Under Nevada law, the (copyright) assignment is champertous and is, therefore, invalid," they wrote.
The Lewis and Roca attorneys also challenged Righthaven's assertion that the Utah defendant should have to deal with the lawsuit in Nevada. In this case, they said, no one from Nevada read the story at issue and just one third of the story was posted deep within a message board by a third party from India.
"Righthaven may claim an interest in litigating this matter in Nevada, but it is clear that Righthaven is merely an arm of an Arkansas-based company, and a champertous enterprise between that Arkansas company and its 'grubstaked' copyright-trolling operation," the Lewis and Roca attorneys wrote, referring to a column by Review-Journal Publisher Sherman Frederick in which it was disclosed that Righthaven was "grubstaked" by a Stephens Media entity.
"Furthermore, Righthaven is desperately (albeit unsuccessfully) attempting to find other newspapers that are willing to join in its bizarre campaign. Righthaven fancies itself a potentially national corporation, yet seems to become provincial when it comes to inconveniencing and bullying smaller and less-funded defendants, who have engaged in de minimis (trivial) offenses, if they are offenses at all," the Lewis and Roca attorneys wrote.
Righthaven attorneys have not yet responded to the champerty allegation in the Vote for the Worst case, but they have insisted their copyright assignments are valid for lawsuit purposes.
"The Righthaven assignment effects an assignment of the right to sue for all past, present, and future, infringements of the work (story)," Righthaven attorneys J. Charles Coons and Joseph Chu said in court papers this month.
(Some Righthaven observers have asked about trademark and copyright legal work Lewis and Roca has done for the Las Vegas Sun and its sister companies. The Sun has covered numerous lawsuits in which Lewis and Roca -- and other law firms involved in the Righthaven cases -- have represented various plaintiffs and defendants. When the Sun and its sister companies are not parties in lawsuits, as is the case with the Righthaven suits, the Sun has found it unnecessary to disclose its unrelated relationships with the law firms involved.)
In other Righthaven developments:
-- Chief U.S. District Judge for Nevada Roger Hunt last week denied a motion for dismissal of a Righthaven lawsuit against Industrial Wind Action Corp., which operates an educational website about environmental issues with wind energy.
The site is operated from the home of Lisa Lenowes in Lyman, N.H.
Industrial Wind said it doesn't do business in Nevada and isn't subject to the jurisdiction of the Nevada court.
But for purposes of the dismissal motion, Hunt found willful copyright infringers purposely subject themselves to the jurisdiction of the copyright owner's home state court.
The stories at issue ran in the Review-Journal as well as another Stephens Media paper, the Ely Times.
-- Righthaven reached a confidential settlement of its lawsuit against Free Speech Systems LLC and radio talk show host Alex Jones in Austin, Texas, who have websites called www.prisonplanet.com and www.infowars.com. Court records indicate a substantial portion of a Review-Journal column was posted on these sites, with a link to the entire column; while message board users of the sites posted additional entire Review-Journal stories with links.
Jones in July vowed to fight the lawsuit, calling it "totally without merit" and saying it "appears to be purely predatory."
But he apparently changed his mind.
"Righthaven, Free Speech Systems and Mr. Jones have agreed to settle the matter by a written agreement," Righthaven said in court papers last week.
-- One of the latest defendants to be sued by Righthaven is disputing the allegations against him. Rod Brooks in Victoria, British Columbia, and his website, iama911operator.org, were sued last weeek after a Review-Journal story -- about a 911 call related to the police shooting at Costco of Erik Scott -- allegedly was posted on the site.
Brooks is a 911 operator and communications trainer with the Victoria Police Department, his website says.
"We clearly operate within the 'fair use' legal doctrine of copyright law, distributing published local news to educate and inform members of the emergency services communications profession. Given the extent of similar professional sites distributing news in this legitimate and valuable context, we are surprised that (the Review-Journal) wouldn't recognize this," Brooks said.
Krieger has been successful in smacking down Gibson before and I suspect he'll take special delight if he's able to do it again.
The fact of the matter is that the only thing anyone really knows is that 130+ people violated the copyright laws. My guess, again, is that because it's been done for years without anyone realizing the lag in law from technology, or for that matter, the law itself, in most, if not all cases, people had no idea.
I think it's more the "ambush" tactic that's being used more than anything else that so offensive to people. In most civil legal matters there is an attempt made to avoid litigation.
If the Cleveland Plain Dealer, the Seattle Times, the New York Times, the Boston Herald and even the Wall Street Journal under Murdoch can send out letters or "take down notices," it seems to me that the RJ could have done the same, as well as written a story about its efforts.
It also seems to me that until Zobell was called on it, it apparently had no intention of writing this story. Instead, it let itself be scooped by the Sun on a story that's now become national.
This is just a guess, but if one of these actually gets to court and a judge awards a minimum settlement, Righthaven is going to back away quickly.
These nutty analogies that are showing up here that talk about bloggers as "thieves" show just out of hand this has gotten.
Obviously it's a serious issue in the longer term, or maybe not so obviously. The RJ can't seem to put any quantification on what it might have lost from these posts. Maybe it's a lot, maybe it's a little. We just don't know and we don't know because the newspaper hasn't been acting like newspaper: Reporting the story and reporting with information that only it has.
I've heard others who are not ignorant of the law question the business relationship between Stephens Media and Gibson being co-owners of Righthaven if it is in fact Righthaven doing the legal work. It has been said that the Nevada Bar prohibits non-attorneys from being owners of a law firm.
With that in mind, then it makes sense that the assignment arrangement would have been made as it was to avoid that situation. Rights are assigned to Righthaven, who then sues using the offices of Gibson. Once they win they pay a portion of the company profits to Stephens media as a partner in the business. Righthaven retains rights so they can sue others who allegedly infringe on the same story.
I really don't see how they can say this is not barratry as the whole business model of making money depends upon instigating legal challenges.
It would also appear that in trying to avoid issues with the Nevada Bar they might have ran afoul of the even more arcane charge of champerty.
And just to show how arcane both those terms are, the Firefox spellchecker does not recognize them.
Boftx: "With that in mind, then it makes sense that the assignment arrangement would have been made as it was to avoid that situation." The law often doesn't make sense and I say that with all respect. That's why I don't try to interpret it.
For me the two things that come into play are pretty simple: Letters, as I said, could have been written first, despite what some say -- other newspapers do it; and that the RJ didn't take into consideration the ill will that it's apparently spreading in the community.
I don't think the paper will go out of business, but I do think that it may have done some damage to its value if Stephens plans to sell it sometime down the road.
There's no question that the newspaper business is in deep trouble, but other publications are seeking creative ways to improve their lot in their business, not by suing readers.
murrayburns,
I agree with you, common sense and the law have little in common at times. I find it an interesting exercise to try to identify the techniques used to get around both.
My point is that it seems that the owners of Righthaven (Stephens Media and Gibson) took specific steps avoid Nevada Bar ethics violations and as a consequence they ran afoul of others. My guess is that some of the attorneys who are defending these lawsuits are building an ethics case against Gibson.
We won't see the real fireworks until the EFF steps in fully and takes one all the way to judgment.
botfx: Oh, I understand. My background is such that I just don't try any longer to make suppositions regarding the law.
As to EFF, it's a fine organization and it will be interesting to see how that goes. Equally interesting is that Boies Schiller is looking at this matter.
It is beyond my comprehension that the Federal Court will award much in these cases and I have some experience here.
The defendants, in my view, are not "thieves," nor obviously are they lawyers and they made a simple, innocent mistake. Federal Judges, in cases like this, take these things into account.
What's most interesting to me is that some people are so vehement about this issue in terms of the law, about which they know little in either a practical or philosphical sense.
What the RJ did, again in my view, is take on a number of "small fish," who are no doubt very worried about the outcome and who are, in fact, innocent of a willful action.
Given the economy, that's just plain wrong.
murrayburns,
As you may have suspected I am not a lawyer. I can claim to have some knowledge of philosophy, and that is what makes this so interesting.
That said, I am curious just how much influence the concept of "spirit of the law" will apply here. I know that this is basically an action in equity, and though we do not have equity courts today, the principle of coming to equity with clean hands is still held in high regard.
Chunky says:
"First came "barratry" and now comes "champerty.""
Words only a lawyer could love but Chunky likes barratry a lot!
Maybe the Nevada Bar could create a reality show called "Nevada Bar Smackdown". Mr. & Mrs. Chunks would even buy a Pay Per View to see Gibson get a "legal smackdown" by the Bar or our justice system such that it is these days.
Just to be clear, the Chunks are NOT suggesting a physical smackdown else Mr. Gibson would lose his cool Bluetooth headset!
That's what Chunky thinks!
This shows how lame the reporting by Green is.
The Federal judges can't rule on barratry even if they wanted to.
Barratry is a state criminal offense.
It has zero standing in a Federal civil court. There is no Federal criminal version of barratry.
Camperty is a chump legal theory.
But Green likes to print want ever crap comes from the defense lawyers even if it does not make one inch of legal sense.
The reason why they are little-known is because they are little-successful if ever.
The Sun's copyright lawyers, again quoted in this article, have stated that newspapers sites like the LVRJ and the Sun have no claim to copyright.
I guess the Sun has no claim to copyright.
murrayburns,
Can you provide a link referring to the Boies Schiller firm taking an interest? I've been been unable to turn one up. Judging from what I have found I would guess that they would side with Gibson.
"I really don't see how they can say this is not barratry as the whole business model of making money depends upon instigating legal challenges."
That is not even close to the definition of barratry.
If that is barratry then almost all law firms would be guilty.
Nearly all of them of have a business of making money based on instigating legal challenges.
Most law firms are in the business to make money.
They make money by suing people.
What a shocking concept!!!!!!!!!
botfx: Think David Boies...I'm sure you can find him on the web.
I see SgtRock is not a "trusted" commenter
For SgtRock: Thanks for your comments. We've updated the story as follows:
Defense attorneys say "barratry" supports their allegation that Righthaven comes to the lawsuits with "unclean hands" -- with unclean hands being a defense to copyright infringement suits.
murrayburns,
I found the firm alright, and many cases. I just couldn't find a link that indicated the firm was interested in this.
I am not sure on how "barratry" and "unclean hands" have to do with each other in these cases.
In Nevada, barratry deals with filing a lawsuit that has no merit. None of the Righthaven lawsuits have dismissed. All so far have been found to have merit. Also, in Nevada, to be charged with barratry one has to file the false lawsuit in a Nevada state court.
Also, "unclean hands" defenses are nearly always used against claims of remedies like injunctions and not claims of monetary awards.
I believe Righthaven is seeking mainly monetary awards. So even if they proved Righthaven has "unclean hands" I still think the court would award Righthaven monetary awards.
I guess somebody is paying these defense lawyers bills. They are sure getting pure junk as defenses. They should be asking for refunds.
SgtRock,
With regard to ONLY the non-profit sites they have sued, ones that have no advertising at all including Goodgle Ad-sense links, it can, and will be argued that the RJ actually made money from the traffic that clicks on the links going to the original story.
It can, and will be argued that those web users who saw the partial story (stipulated that this may not be true for a full story) and then clicked through to the RJ which in turn generated revenue for the RJ would not have even seen the story on the RJ except that an excerpt of undetermined length was posted on the non-profit in the first place.
Therefore, the RJ can not claim that they were damaged when in fact they benefited from the action.
I will grant that this argument might not hold true in the case of a site that had advertising present. But those who did not and who had a link to the original story and did not re-publish the entire story have a strong "clean hands" argument. Or rather, they have a strong argument that the RJ does not have "clean hands".
And that has always been a strong defense in equity.
I wouldnt trust anyone who supported Wronghaven either...
Nah, the smart ones countersue. People shouldnt give into terroristic threats. They know thell lose in court and are just looking for a quick settlement. WrongHaven is just looking to make money, like the RIAA and MPAA before them. They never cared about artists, just about keeping the money for themselves-- which is why so many artists dissassociated from those organizations and started delivering content straight to P2P. Finally, they learned that lawsuits just dont work so they quit. What the shortsighted corporate types will never understand is that free distribution of material actually encourages those who like the material to buy it. When the lawsuits became outlandish, the Electronic Frontier Foundation stepped in and countersued. Some of these lawsuits were ridiculous, suing people who were dead, suing a person who lives in a homeless shelter who didnt even have access to a computer. Sorry, but these corporate types need to learn their lesson.
Wanna know what this really is all about and what they do with the money once they get it? Read the following.... I hope someone does this to Wronghaven, Im sure it would be widely acclaimed, even in government circles....
http://www.hellmail.co.uk/postalnews/tem...
Its good to see the lawyers themselves being investigated for being copyright trolls :)
As others are doing, I encourage everyone to completely avoid anything done by Stephens Media. Let's boycott them out of business! Just like the RIAA and MPAA learned that copying for personal use was here to stay, just like with VCR taping of TV shows (a famous court case) IF these people are going to threaten us, we will drive them out of business by not supporting them. I hadnt even heard of this filthy rag before this, but now that I have, the EEF will make sure they dont go unpunished with the class action lawsuit against WrongMedia and Gibson that many have already joined..... WrongHaven is a company of 10 people created expressly for the purpose of googling 24/7 to find people to harass. They violate the spirit of US Copyright Laws by their dirty behavior (as mainstream media and lawyers have noted) and they deserve to be taken down, along with Gibson.
botfx...."Therefore, the RJ can not claim that they were damaged when in fact they benefited from the action."
They don't have to show damages. DMCA allows one to sue for statutory damages without regard to economic damages. The $75,000 and the $150,000 numbers come right out of DMCA. The legislature wrote that into the law as a punitive and preventive measure to discourage copyright infringement in the first place.
Also, "unclean hands" has not nothing to what you mention. The defendent has to prove that the plantiff has done illegal behavior which is a high hurdle to overcome. They can't just accuse somebody of "unclean hands". Also "unclean hands" defense are nearly always only used against claims of remedy (like injunctions) and not monetary claims.
alexthegreat...."They violate the spirit of US Copyright Laws by their dirty behavior " Thank you for coming out and standing with Righthaven and against the very unethical people who are not only violating the spirit of US Copyright law but the actual black letter of the law that clearly states that is very dirty behavior to copy and paste all or a significant part of anothers's intellectual property and post it on your own site as if copyright infringer has spent money generating that material.
You want to get rid of Righthaven.
Here is a simple solution.
People need to get some ethics. Stop copying and pasting LVRJ stories.
End of story........be ethical.