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Saturday, Feb. 12, 2011 | 3:25 p.m.
A development in the Righthaven newspaper copyright infringement lawsuit campaign may generate some guidance on what damages Righthaven is entitled to collect from its lawsuits and whether it can seize the websites of lawsuit defendants.
In a lawsuit spree unprecedented in the U.S. newspaper industry, Las Vegas-based Righthaven LLC since March has sued at least 238 website operators and message-board posters, charging they displayed without authorization material from the Las Vegas Review-Journal and the Denver Post.
Many of these lawsuits have been settled under undisclosed terms.
But some defendants are fighting back, saying the federal courts handling the cases don't have jurisdiction over them, that their online posts are protected under the fair use doctrine of copyright law and that the Review-Journal and the Post encouraged the online sharing of their material.
In other Righthaven cases, defendants either haven't been served or court clerks entered defaults against the defendants after they were served but failed to respond to the Righthaven suits.
Righthaven has now for the first time asked a federal judge to convert one of those clerk defaults into a monetary judgment and to award it the defendant's website domain name.
The case involves Bill Hyatt, who was sued in U.S. District Court for Nevada on Oct. 6 after Righthaven said a Review-Journal entertainment column was posted on Hyatt's website 1ce.org -- a WordPress blog called "News for Everyone."
A court exhibit indicates the post on that website credited the column to the Review-Journal and linked back to the Review-Journal website.
Court records indicate Hyatt hasn't responded to the lawsuit. The 1ce.org website remains active and on Saturday displayed an advertisement for the newly-opened Ravella at Lake Las Vegas hotel.
While Righthaven has settled at least two of its lawsuits for less than five figures, it's going for all the marbles in its judgment request against Hyatt, this week asking U.S. District Judge Kent Dawson to award it control of the 1ce.org website domain name, $150,000 in damages, $1,500 in legal fees and recovery of its $350 lawsuit filing fee.
Righthaven also asked for a permanent injunction barring Hyatt from "further infringement of Righthaven-owned copyrighted works."
Righthaven said in Thursday's motion it's entitled to $30,000 in statutory damages under the Copyright Law -- and is entitled to increase that to $150,000 "because defendant's infringement of the work was willful."
"In copyright infringement cases a plaintiff may elect either actual or statutory damages," Righthaven said in its filing. "In fact, the law is clear that statutory damages are recoverable without regard to the existence or provability of actual damages.
"The United States Supreme Court has held that an award of statutory damages within the limits prescribed by Congress is appropriate `even for uninjurious and unprofitable invasions of copyright,"' Righthaven said in its filing.
Righthaven in its filing didn't address why it's entitled to control of the 1ce.org website domain name.
Defense attorneys in other cases have said there's no provision in U.S. copyright law for such a domain name transfer and they complain this standard demand in Righthaven's lawsuits is included to pressure defendants into settling.
Righthaven, in other cases, has insisted these demands are appropriate.
So far, none of the federal judges hearing Righthaven cases have ruled on the issue.
It's not known when Dawson will rule on Righthaven's judgment motion. A ruling by Dawson may advance the rapidly-developing case law generated by the Righthaven lawsuits.
This case law already includes a fair use dismissal and may expand with a second threatened fair use dismissal as well as counterclaims against Righthaven and Review-Journal owner Stephens Media LLC -- an affiliate of which has invested in Righthaven.
In another development, another Righthaven defendant filed court papers denying the copyright allegations against him.
The defendant is Wayne Hoehn, who in January became one of the first message-board posters to be sued on his own -- without the message board itself being sued.
Hoehn's Las Vegas attorney, J. Malcolm DeVoy IV of Randazza Legal Group, argued in a motion for summary judgment on fair use grounds Friday that the Righthaven lawsuit was filed "to wrest a quick settlement from Mr. Hoehn on shaky copyright infringement grounds, based upon questionable rights -- rights it purchased from the author only after Righthaven discovered Hoehn’s post, for the sole purpose of filing suit against Hoehn."
"Like other Righthaven targets, Hoehn is not a large business or well-funded entity, but an individual who posted content from the Las Vegas Review-Journal to a website in order to foster an online discussion about the article itself," Hoehn's filing said. "This commonplace conduct permeates the Internet to a degree where Righthaven would have to file lawsuits in perpetuity to make it halt – if the law gave it a right to make it halt."
Hoehn's filing suggested that far from being a rogue copyright law violator, he is "a decorated veteran of the Vietnam War" with the Silver Star, Bronze Star Medal and the Purple Heart among his awards. He's also the proprietor of Mid-States Insurance Services in Bowling Green, Ky., which has an A+ rating from the Better Business Bureau, Hoehn's filing said.
Hoehn's attorney argued in his motion that from July 1999 through January 2011, Hoehn engaged in "vigorous debate and discussion" on a multitude of topics on the MadJackSports website (itself a former Righthaven defendant).
The filing said Hoehn has made more than 18,000 posts on the website including posts about strains that public pensions put on state budgets. In order to generate conversation among forum users, he posted a Review-Journal column about pensions in Nevada, attributing the information to the Review-Journal, the filing said.
"Hoehn did not post the column for profit" and "Hoehn’s sole purpose in posting the article was identical to a man cutting out a newspaper article and posting it on a community bulletin board – he sought to engage in debate and discussion with fellow citizens on a matter of public importance and to contribute to the crowd-sourced educational discussion about matters of public importance, as he had on many topics over the past decade," the filing said.
"The republication of copyrighted material does not automatically give rise to a claim for copyright infringement. A defense to copyright infringement claims, the fair use doctrine holds harmless those who use copyrighted material for purposes of education, commentary or critique," the filing said.
"Hoehn, who provided exemplary service to his country, understood the vital role this discourse plays in democracy. By debating important political issues with his acquaintances, Hoehn refined his own views and helped others develop their own. While this discourse may have given the owners of Righthaven the fantasy of a quick cash-grab from Mr. Hoehn, this honorable court must turn back this ignoble misuse of the copyright laws and protect the citizenry’s right to free discourse on matters of public concern," the filing said.
Hoehn's law firm, Randazza Legal Group, is led by San Diego media attorney Marc Randazza, an early critic of Righthaven.
Righthaven hasn't yet responded to Hoehn's fair use arguments.
The Nevada State Bar should look into Righthaven and their lawsuits. It seems to me they are taking advantage of the court system.
Typical right wing hypocritical nuts, suing a Veteran. Next thing you know they will be talking about supporting the troops.
I thought they were against litigation? They didn't like the endoscopy lawsuits.
Because of his media activities with the RJ-Rightklaven, Alan Stock of KXNT Radio should no longer be allowed to participate in the Las Vegas Veterans Parade in my opinion.
I'm confused.
I emailed one of the editors of the R-J and asked if I posted a story link onto facebook, was that okay, and the response I received was yes, as long as the R-J was credited as the source.
If that's so, what are these defendants doing that is getting them sued?
Is it that they are copying and pasting onto their sites and not crediting the R-J?
Sounds like the Nevada Court System has become a subsidiary of RightHaven.
again, who is the publisher of the r-j?
that's right, mr. bob brown.
he could stop all this nonsense with one phone call, but instead chooses to ruin the image of that "news"paper.
"I emailed one of the editors of the R-J and asked if I posted a story link onto facebook, was that okay, and the response I received was yes, as long as the R-J was credited as the source."
Fair use is linking back to the story, citing the source of the link and you may even print a few sentences of the story.
What people are getting sued for are that the whole story or a signifcant part of the story is getting copied and pasted. Righthaven and most newspapers, including the Sun, consider that copyright infringement.
I have posted a couple of stories from the Sun on my Blog and everytime I wrote to the Sun and let them know I was doing it and even included the link to the post and in both cases the Post included a link to the Las Vegas Sun and I thanked the Sun for allowing me to use the article. I have even told them that I would take down the stories if they would like.
I have even worked out a deal with the Sun to use pictures from their staff photographers on my blog and forum. All they ask for is that I give credit for the article to them, for the pictures to the original photographer and I also have a link back to the Sun in my signature for all of my forum posts.
On the other hand I emailed the RJ for permission to use their pictures and have yet to hear back from them. I can't wait to see what happens in the end and it wont be pretty when the RJ closes it doors due the lack of advertisement.
"Sounds like the Nevada Court System has become a subsidiary of RightHaven." Well put. One can soon add the Colorado Court System to this statement.
The RJ provides links to Facebook, Twitter, Digg and other sites in its online edition. Are the R. J. suits not facilitating and encouraging people to post their copyrighted stories to blogs and Facebook pages by providing these links? Is this simply a trap to encourage readers to post a story to a personal blog so that Righthaven can sue those readers? If so, it would appear that the RJ along with Righthaven are nothing more than a cadre of petty thieves and greedy sons-of-bitches.
Thanks SgtRock, I figured that was it.
Chunky says:
Few people deny the R-J's rights to their work, it is the manner in which Righthaven goes after the defendants. They've made a business model out of searching for a potential violation for the sole purpose of filing a suit and squeezing money out of the defendants.
It is an abuse of our legal system and our courts. Hopefully someone will be well funded enough to legally beat them down and find a way to make them suffer their own system.
That's what Chunky thinks!
Terro-litigators. Is the twisted Righthaven crusade a direct legacy of the Sherman Frederick regime, or was he simply around when they cooked this up?
""Sounds like the Nevada Court System has become a subsidiary of RightHaven." Well put. One can soon add the Colorado Court System to this statement."
Just a FYI....they are suing in Federal District 9 and not the 8th Nevada District.
Poor poor Chunk....so cluless and naive on how the legal system works..."They've made a business model out of searching for a potential violation for the sole purpose of filing a suit and squeezing money out of the defendants."
So Lehner the heavy hitter does not have a business model searching for clients to file suits to squeeze money out of the defendants???
So almost every law firm that has a civil division does not have a business model searching for cliens to file suits to squeeze money out of the defendents?
After you finish taking your grade school coursework and grow up a little bit then you will realize that most civil law firms have a business model searching for clients to file suits to squeeze money out of the defendents.
If you dont' want to be sue for copy infringement then don't steal other people's copyright.
"What people are getting sued for are that the whole story or a signifcant part of the story is getting copied and pasted. Righthaven and most newspapers, including the Sun, consider that copyright infringement."
some of the defendents have posted a very small part of an article, with link , and still got sued by these bottom feeders.
so, Sgt, that doesn't fly.
The RJ will die a slow death. Greedy little pigs.
It has been my experience that it is easier to get a judgment than it is to collect on one.
The RJ is a great organization (for the people on top). They even have full medical insurance coverage for part-time people. This can be expensive, especially if the employees have preexisting medical conditions.
The Rightklaven litigation will help pay for this program, that some call: "Shermocare"
search engine "Shermocare" for more information
I am going to boycott advertisers who deal with RJ.
This is over the top. I won't, if I can help it, give money to any of the entities that advertise in RJ.
jt2ou....go read the copyright language on the Sun site. It is very similar to the LVRJ and almost every newspaper operation in the USA.
They all consider it to be copyright infringement if you copy and paste more than a 2 or a few paragrpahs or over a certain word count like 100.
They Sun considers it to be copyright infringement if one copies and pastes...." but it must not be more than one-tenth of the total word count of the story or 100 words, whichever is lesser"
This is just another reason why I stopped subscribing to the RJ.
"This is just another reason why I stopped subscribing to the RJ."
Are you now subscribing to the Sun paper?
This Gibson fellow has sunk to a new low suing an autistic kid. I'm waiting for him to sue a down syndrome child.
http://www.p2pnet.net/story/48475