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September 23, 2014

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Attorneys say new evidence shows fraud by Righthaven

Defense attorneys in at least two Righthaven LLC copyright infringement lawsuits filed motions to dismiss over the weekend, citing new evidence they say shows Righthaven has perpetrated a fraud on the federal court in Nevada.

The evidence cited is the newly-unsealed Strategic Alliance agreement covering copyright assignments from Stephens Media LLC, owner of the Las Vegas Review-Journal, to Righthaven.

In motions filed Sunday, attorneys with Randazza Legal Group said this contract shows Righthaven’s lawsuits are based on "sham’’ copyright claims since Stephens Media maintains control of the material covered by the copyrights.

"Righthaven is neither the owner nor exclusive holder of any rights in the copyrighted work underlying this lawsuit. As such, Righthaven has suffered no injury or other cognizable harm required for it to have standing’’ to sue, said one of the filings by attorneys Marc J. Randazza and J. Malcolm DeVoy IV.

"Indeed, the agreement makes it abundantly clear that Righthaven actually has no rights in the copyrights it claims,’’ the filing said.

"The `assignment’ is a transparent sham that is designed to make Righthaven appear to be a copyright assignee for the purposes of filing suit, meanwhile the actual rights at issue are governed by this agreement, which renders the assignment meaningless,’’ their filing said.

"This is not a true copyright ownership that Righthaven has acquired, nor is it even an exclusive license – it is simply an attempt to illegally assign a copyright claim,’’ the attorneys wrote.

"Righthaven has willfully deceived this court. Righthaven fought mightily to keep this evidence from the public and from all defendants in its legion of cases brought in this district. An examination of the document and its implications for Righthaven’s business model make the reason plain – it reveals the unlawful nature of Righthaven’s actions before this court and renders all of its lawsuits null and void,’’ the filing said.

They said Righthaven perpetrated upon the court a "sham’’ and a "fraud’’ hundreds of times in its lawsuits by claiming in the lawsuits that Righthaven "owns’’ the copyrighted stories, photos and graphics it sues over, and has exclusive rights to reproduce and distribute them, when in fact its contract with Stephens Media says Stephens Media retains those rights.

For instance, in its lawsuit against then-U.S. Senate candidate Sharron Angle, Righthaven said: "Righthaven is the owner of the copyright in and to the literary work entitled: `It’s the jobs, stupid.'”

That literary work was a Review-Journal editorial.

"Righthaven holds the exclusive right to reproduce the Jobs Work,’’ Righthaven said in its lawsuit. "Righthaven holds the exclusive right to prepare derivative works based upon the Jobs Work. Righthaven holds the exclusive right to distribute copies of the Jobs Work. Righthaven holds the exclusive right to publicly display the Jobs Work.’’

It’s common knowledge that the Review-Journal and Righthaven are partners in the lawsuits.

For non-attorneys wondering why the copyright assignment issue is so important, Randazza and DeVoy explained it this way in a court filing in another Righthaven case: Providing Righthaven only rights to sue isn’t a procedure intended by the federal Copyright Act.

"Righthaven’s practices create a secondary commodities market for copyrights, or exclusive subsidiary rights in copyrights, to be used only in suing others who may have valid defenses, but cannot afford to raise them — or engage counsel whatsoever," they said in a case where they and New York copyright attorney Ron Coleman represent the Media Bloggers Association.

"This is inimical to the purpose of the Copyright Act, which was intended to protect the intellectual investments of creators, rather than creating lawsuit mills that use registered copyrights – only after their infringement was discovered – as a source of income, rather than a shield against others’ misappropriation," their filing said.

Sunday’s filings for dismissal were made in the Righthaven lawsuits against Lehi, Utah, company Vote For The Worst LLC and against Kentucky message-board poster Wayne Hoehn.

Righthaven has not yet responded to these motions, but has said the newly-discovered evidence does not undermine its lawsuits over Review-Journal material and arguments otherwise “would completely eviscerate countless years of licensing and related transactions throughout the country.”

Righthaven, co-owned by Las Vegas attorney Steven Gibson and an affiliate of Stephens Media, since March 2010 has filed 264 lawsuits in federal courts in Nevada, Colorado and South Carolina over Review-Journal and Denver Post material.

The no-warning lawsuits are a departure from the usual newspaper industry practice of resolving copyright issues out of court.

Righthaven, however, says takedown requests and orders have been ineffective in deterring rampant online infringements of newspaper content. And while defendants complain about getting sued without warning, Righthaven notes in its lawsuits those same defendants for the most part didn’t contact the Review-Journal or the Denver Post for permission to use their material.

Some attorneys believe disclosure of the Strategic Alliance contract may result in dismissal of Righthaven’s pending lawsuits over Review-Journal material, and could even lead to more defendants — including those who have settled — hitting Righthaven with counterclaims for damages based on the alleged misrepresentation of its ownership in the copyrights.

One attorney familiar with Righthaven told the Las Vegas Sun and its sister publication VEGAS INC over the weekend that at minimum, Righthaven is unlikely to file new suits over Review-Journal material and that proposed settlements may be put on hold until Nevada federal judges hearing Righthaven cases rule on the validity of the copyright transfer.

This attorney noted that to avoid such difficulties in the future, Righthaven would simply need to modify its agreement with the Review-Journal and other existing or potential lawsuit partners.

It’s unknown whether Righthaven’s contract with the Denver Post includes the language at issue in Righthaven’s contract with Stephens Media.

Righthaven has filed lawsuits over at least three copyrights it claims to have been assigned from the Denver Post, one involving a photo and two involving columns.

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  1. Chunky says:

    Fraud...love it!

    How do you like them apples Mr. Gibson?

    Time for the defense attorneys and judicial system to bury this stink!

    That's what Chunky thinks!

  2. This is has been what I have contended all along that what Righthaven, Stevens Media, and Media News Group have been engaged in is a criminal enterprise. It is good to finally see someone use the 'F' word regarding Righthaven, FRAUD.

    Now its time to use the 'R' word RICO.

  3. I would like to see what the Kool-Aid drinker Rock says about this. Will he defend possible criminal activity?

  4. Scam.

    RJ was making cash off these fraud lawsuits while they were acting like they were taking the high road by "protecting journalism."

    They never disclosed their financial interest. Fraud.

  5. Yes the RJ nor Stevens Media can escape this. Ultimately even if Righthaven goes bankrupt Stevens Media will be utterly decimated by this. Possibly Media Newsgroup as well.

    Sherman Fredrick surely knew the terms of this agreement when he called Righthaven his "little friend"

  6. @Ken Bingham...

    "Sherman Fredrick surely knew the terms of this agreement when he called Righthaven his "little friend"...

    YUP! He surely did!

    "What a tangled web we weave, when at first we practice to decieve".
    Sir Walter Scott

    Sherman must be squirmin' like an m-80 just went off in his hand.

  7. Bascially, the courts if they disallow the copyrights by Righthaven will have to turn copyright law on its head and overturn centuries of copyright concepts and laws.

    It is doubtful that the higher courts will go along with that wholesale creation of new law by a mere lower court.

  8. Rock

    Giving us the Righthaven party line huh? You have been wrong on everything else so lets add another wrong to your growing pile.

  9. martin09

    Righthaven will never make it to the Supreme Court. Their business for now on is fending off hundreds of counter suits. They are finished and Steven Media is finished too. They cannot escape this.

  10. Rock, they lied in their court filings. They are finished.

    "Despite any such Copyright Assignment, Stephens Media
    shall retain (and is hereby granted by Righthaven) an exclusive
    license to Exploit the Stephens Media Assigned Copyrights for any
    lawful purpose whatsoever and Righthaven shall have no right or
    license to Exploit or participate in the receipt of royalties from
    the Exploitation of the Stephens Media Assigned Copyrights
    other than the right to proceeds in association with a Recovery.."

    However in their court filings:

    7. Righthaven is the owner of the copyright in and to the Work.

    30. Righthaven holds the exclusive right to reproduce the Work, pursuant to 17

    31. Righthaven holds the exclusive right to prepare derivative works based upon the
    Work, pursuant to 17 U.S.C. 106(2).

    32. Righthaven holds the exclusive right to distribute copies of the Work, pursuant to
    17 U.S.C. 106(3).

    33. Righthaven holds the exclusive right to publicly display the Work, pursuant to 17

  11. I know someone who got raked over the coals by Righthaven last year when all of this first started and I sure hope that when all is said and done, they (along with the other victims of their strong arm tactics) get a fair settlement. What Stephens Media and Righthaven have done is made people less willing to reference or link to the Review-Journal or any other newspaper site that has a relationship with Righthaven.

  12. It's ironic that Sherman Frederick said that papers that do not protect their content will go out of business, now the LVRJ may go out of business for being over zealous in protecting their content.

  13. I'm very curious to know more about what reporters who work for the R-J think about this mess. I talked to one last summer, and I was shocked at how little he knew about the kinds of lawsuits that were being filed on behalf of the R-J. He went on and one about the need to protect copyright, etc. without knowing that Righthaven was suing cat bloggers, people with disabilities and professors. At the same time, ironically, said writer was freely linking to Getty photos on his R-J blog.

  14. "Bascially[sic], the courts if they disallow the copyrights by Righthaven will have to turn copyright law on its head and overturn centuries of copyright concepts and laws." - SgtRock

    What part of "come to equity with clean hands" do you not understand?

    Few, if any of us, are arguing over the need for copyright protection. We are disagreeing with how Righthaven has approached this. Righthaven's actions might well result is the weakening of copyright law because of their greed and arrogance.

  15. One thing we have learned from this is that Righthaven does nothing without Stevens Media approval. They are really just a front group for Stevens Media. All counter claims against Righthaven should include Stevens Media or in other venues include Media News Group.

    Stevens Media probably considers Righthavan to be a throw away company. In case there becomes massive lawsuit liabilities they can just fold up Righthaven and walk away from liable. The wording in their agreement shows this.

    "Stephens Media's Potential Liability.
    Stephens Media understands and acknowledges that Stephens Media and Righthaven may be liable for an Infringer's attorneys' fees as required by Law in connection wi th an Infringement Action. Stephens Media further understands that a lawsuit brought solely to harass or to coerce asettlement may result in liability for malicious prosecution or abuse of process. If any Claim
    made by an Infringer in an Infringement Action results in Losses, other than Losses described in Section 8, Righthaven shall be solely liable for such Losses and shall indemnify Stephens Media from and against any such Losses but only if such Losses do not arise out of a missrepresentation by Stephens Media or other breach by Stephens Media of a provision of this Agreement."

    This section shows malice of forethought among Stevens Media. They knew what Righthaven was doing was underhanded and had the great potential for counter-suits so to get around this they set up Righthaven to take the fall for any such liability.

    It will not work though Stevens Media WILL be subject to all Righthaven related liabilities possibly even those involving the agreement between Righthaven and Media News Group because RIGHTHAVIN IS STEVENS MEDIA.

  16. "Few, if any of us, are arguing over the need for copyright protection"

    Correction: Hardly any of us are arguing that there is any need for copyright protection. Most here want the Internet to be this free-for-all where everybody can copy and paste as much as their hearts desire.

    You may see the need for copyright protection but I don't think your pirate friends see any value in it.

  17. Wrong again Rock. Sharing online should be on a voluntary bases by the copyright holder. I do not condone stealing. There are great benefits for sharing content online and obviously these papers understand this with their sharing buttons.

    Any marketing person worth their salt would agree with this but unfortunately these newspapers and content providers are not listening to their marketing people but their lawyers. Which is why they are going out of business and not adapting to technology and new paradigms. They think that fighting the current will get them somewhere but it won't.

    YOU on the other hand are condoning an organization that files false statements to Federal Courts. Files false copyrights to the United States Copyright office.

    You believe that appeals courts are going to save the day but just remember Righthaven is offending Federal Judges and appeals courts are going to be as equally offended by Righthaven tactics. Appeals courts are also not going to approve of being used for profiteering.

    The only people who seem to not mind being used is Righthaven who agreed to take it up the shorts for Stevens Media.

  18. I'm still wondering if anyone posting has been a defendant. I also wonder what this is costing Stephens Media, as the recovery by Righthaven doesn't seems especially profitable.

    However, the most interesting issue is the potential for Righthaven and the RJ for fraud.

    I suppose we'll all have to wait, eh?

  19. I wonder how many lawyers working for Righthaven have financed large homes and expensive cars? HA!

  20. Righthaven has made it clear since they first started this lawsuit mill... That they have invested time and money into obtaining EXCLUSIVE copyright to questionable articles and that the bloggers did not ask THEM for permission to post.

    So the blogger must pay them for the damages Righthaven suffered. Never in any lawsuit did they say they are protecting the RJ's copyright because THEY own the copyright, not the RJ.

    It has nothing to with voiding copyright law, and everything to do with lieing to the court in order to make a buck. That is called fraud!

  21. Rock. Voluntarily sharing content is giving permission. You need some reading comprehension.

    Allowing a blog to use an image or part of a story and link back is an extremely good marketing tool. These newspapers don't seem to appreciate the value of advertising or the value of Search Engine Optimization. The more links you get the more eyes that come to your site. Links are far more valuable than even placing an ad and even paying Google to put your site on their sponsored link section which people have actually been conditioned to ignore. There is an entire SEO industry that does nothing but increase company's online presence. Newspapers that discourage sharing violate every SEO and marketing principle.

    So when I say sharing I am not meaning stealing. I mean sharing with the full blessing of the copyright holder in a way that benefits them. I would never condone practices that hurt the copyright holder, only things that help them so they can continue to produce more content and make lots of money doing it.

  22. A number of Righthaven lawyers have jumped ship. First sign of trouble is when poeple start leaving enmass.

  23. Rock

    so just in case you misunderstood. If a copyright holder does not want you to take their stuff then don't take their stuff. But if a copyright holder wants to raise their profile and bring people to their sites then allowing sharing is a smart marketing tool.

    Bottom line is copyright holders have a right to their property and people should not take without asking and getting permission.

  24. Plus this has never been about copyrights but about a company that is unjust, abusing the legal systme for profiteering purposes and coming in with filthy hands just like boftx says.

  25. Rock's correct, though the RJ's specific wording is here: http://www.stephensmedia.com/copyright/. While I find it interesting that the Denver Post, a multi-Pulitzer winner has apparently joined the Righthaven fray, I also find it interesting that The New York Times, The Wall Street Journal, Miami Herald and Washington Post all send out "take down" notices of some sort and then only rarely. While certainly is most, if not all of these cases, there was a copyright violation, I think most would agree that it's not the issue of law, but rather the issue of precipitous litigation. But that's what some attorneys do, I suppose, and that's Righthaven's business model. However, given the settlements they've gotten, as well as the apparent relatively small resources of the defendants, it's hard to see it as a successful model.

    I'll give Righthaven and the RJ credit for making the public very aware of the copyright issue, as my guess would be, given Internet history, few were really aware they were violating the law.

    Whatever happens ultimately, whatever's litigated, whatever awards, if any, are provided by the court and whatever occurs with this new issue of "fraud on the court," it remains interesting. Who knows, copyright law might even be changed because of this, or at least clearer to the layperson.

    My advice to the RJ, and maybe all newspaper online venues: Post a copyright notice and explanation of how to "repost" at the top of each. Just make easier for those who've not yet heard about this, or have any idea they're actually violating the law.

    The RJ, by the way, does not make it easy for someone to get permission to repost or otherwise copy its articles. I know people who in the past few months have tried to get permission to just make copies and have received no response, nor to reposting requests. I think I recall the RJ, at one time, "selling" reprints of articles, but I could be wrong. I know other papers do.

    At the end of the day, I also think that the public's perception of the newspaper has been so damaged as to possibly have reduced the value of the paper in the event of a sale.

    It's all speculation, but it's still interesting.

  26. Rock

    Personally I think the fault lies with the government not setting the rules straight regarding Copyright law. They put in a provision for fair use and then failed to define it. It has confused both Copyright owners that have a legitimate interest in protecting their property as well as confused the public about what is acceptable.

    Before the Internet Age copyright law only effected other publishers and the general public had little exposure to them but now with the Internet anyone can be a publisher so it now effects almost everyone who uses the Internet.

  27. "So..............so....in your own freaking words....they are not asking and not getting permission." - SgtRock

    There is the standard of fair use to bear in mind.

    Several of the early cases appeared to fall under that, especially the Democratic Underground case. Even the pat-down photo on deadseriousnews.com might come under that as it is a thumbnail used in a parody.

    It is the Righthaven business model and practices that are so repugnant to many of us. They are not based on seeking justice for the copyright owner, they are a high-tech shakedown operation.

  28. Given the actual arrangement between Stephens Media and Righthaven, it is impossible for Righthaven to be harmed by a copyright infringement. In fact, Righthaven can only benefit if there *is* an infringement. They receive no income whatsoever from the publication of the work even by a licensee, other than such publication provides for the hope of an infringement.

    Stephens Media has a somewhat better position to argue that they are harmed by loss of traffic. But they, too, stand to benefit if there is an infringement as they receive 50% of any recovery.

    This arrangement would seem to be the definition of champerty.

  29. Rock

    Or the papers could have a pricing scheme for small time bloggers to post photos that they can afford or have some kind of arrangement based on traffic. The technology is there and is improving that can allow a news site to track exactly how much a blog is contributing to their readership. Those that contribute should be rewarded or compensated some how, perhaps with money or permission to use more photos and such. That would be a real incentive for bloggers and help the papers as well. As I always said bloggers and newspapers are in a symbiotic relationship. we are not enemies.

  30. "Personally I think the fault lies with the government not setting the rules straight regarding Copyright law. They put in a provision for fair use and then failed to define it. It has confused both Copyright owners that have a legitimate interest in protecting their property as well as confused the public about what is acceptable," Rock writes. Wow, we agree again. Unfortunately, I think Washington has too much on its plate to rectify this issue.

    For years I've taken the position that the layperson's understanding of the law is really in the vernacular: We get it from "Law and Order," and other television shows or sound bites.

    The attorneys with whom I've spoken, virtually all of them with large firms and have been around for a long time, seem to think the media is going to have to be more "emphatic" and clear in notifying online visitors.

    And, I still think a paid model is going to be something newspapers are going to have to effect. It'll take several years for readers to become accustomed to it, but it makes sense to me.

  31. Ooops, I didn't mean Rock in the previous post, I mean, Ken Bingham, with whom I frequently agree. Jeez, I should have known better. Mea culpa.

  32. Does this disclosure surprise anyone?

  33. so let me get this straight, Sargent Frederick. You feel comfortable to use the word "ethics" when you enter into a partnership with a company who is willing to outright lie to the courts? Interesting twist on the high-road. very interesting. not surprising -- just interesting.

    just remember that word when you're getting torn limb from limb by some federal judge someplace. you might even bring the term up to see how the judge feels about Reichaven's "ethics". couldn't hurt any. lol

  34. Haha, SgtShermTheWormRock, scrambling much ? Looking forward to all current lawsuits being tossed out, with SlimeHaven eating the costs. Woohoo !

    The refiling of comments the judge in CO tossed out shows what arrogant scumbags they are.

    Time to set up a new contract with wording that allows you to continue to rip off little bloggers, eh ?
    "Hey, this little blogger blogging about her cat used some picture, let's sue her for 150 grand." How can you bass turds sleep at night ?

  35. You can find those dismissal motions here:

    http://www.americanjustice.org/opinions-...

  36. Sarge, you pose interesting arguments, albeit a bit "loud and angry." However, I think it would interesting to talk with you. If you would like to communicate privately and exchange numbers, perhaps we could schedule a drink or a telephone call.

  37. Sarge, for all your support of the copyright litigation, while I disagree, you certainly have the right to be on that side. I was wondering, however, why, though my matter with the RJ is settled, the newspaper has blocked me from commenting, though any comments I've made in the past there have been in debate of the former publisher's editorials and blogs. Perhaps as an apparent expert in the law, and you do seem to know it, notwithstanding the complexity of it and the fact that we just don't know the outcome at this point, the newspaper has done that. So you know, I have written twice to both the editor and publisher, with no response. Thanks.