National bloggers’ group intervenes in copyright lawsuit campaign

By Steve Green

Wednesday, Feb. 23, 2011 | 8:24 p.m.

A national bloggers’ group intervened in the Righthaven LLC newspaper copyright infringement lawsuit campaign Wednesday, urging a federal judge not to reward Righthaven for what the bloggers call its “get-rich-quick scheme.”

The Media Bloggers Association filed a friend of the court brief in one of the Righthaven lawsuits, urging a Nevada federal judge to award only minimal damages — if any — and no attorney’s fees to Righthaven against a defaulting defendant.

The case involves Bill Hyatt, who was sued on Oct. 6 after Righthaven said a Las Vegas Review-Journal entertainment column was posted on Hyatt’s website 1ce.org — a WordPress blog called “News for Everyone.”

After Hyatt didn’t respond to the lawsuit, Righthaven asked 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.

Represented by attorneys previously critical of Righthaven — Marc Randazza and J. Malcolm DeVoy IV of Randazza Legal Group in San Diego and Las Vegas and Ron Coleman, head of the intellectual property practice at Goetz Fitzpatrick LLP in New York — the Media Bloggers Association on Wednesday called Righthaven’s demands for damages against Hyatt outrageous given the nature of the alleged infringement and what they call Righthaven’s abusive business model.

“A constitutionally bizarre award in this case, such as that sought by the Righthaven enterprise, will create a chilling effect across the membership of (the bloggers), thus reducing the amount of discourse on matters of public concern generally,” the bloggers’ attorneys wrote in their filing.

Righthaven is the copyright enforcement partner of the Review-Journal and the Denver Post. Righthaven is owned by Las Vegas attorney Steven Gibson and an affiliate of the parent company of the Review-Journal.

In a lawsuit spree unprecedented for the newspaper industry, Righthaven in the past year has sued 238 website owners, bloggers and message-board posters over allegedly unauthorized online postings of material from the Review-Journal and the Post.

Righthaven says the suits are necessary to stop rampant infringement of newspaper content, but critics say the no-warning lawsuits are abusive as defendants — facing steep statutory damages under the Copyright Act — typically find the cases cheaper to settle than to fight.

Many defendants said they would have taken down infringing material if the Review-Journal or the Post had asked them to, but Righthaven says this longstanding practice in the newspaper industry of issuing takedown notices isn’t effective in deterring infringements.

The Media Bloggers Association said in its filing Wednesday it represents prominent bloggers and is supported by many more including John Amato (of Crooks and Liars), Glenn Reynolds (of Pajamas Media/Instapundit) and Jeralyn Merritt (of Talk Left).

The association says that since 2004 it has defended dozens of bloggers in legal actions and helped develop the first media liability insurance policy for bloggers.

In its brief, the association reiterated many of the complaints about Righthaven that already are being considered by Nevada federal judges in counterclaims against Righthaven and Review-Journal parent Stephens Media LLC filed by the digital rights group the Electronic Frontier Foundation.

The bloggers charged Righthaven’s business model “is to seek out unwitting and, perhaps, careless bloggers” who used Review-Journal material in online discussions. It then acquires copyrights to this material and then sues the bloggers, the filing said.

“The vast majority of the victims of this scheme are under the impression that by giving proper attribution to a source, they are within their rights to use such excerpts,” the filing said.

“Righthaven now seeks to turn a default into a windfall by asking this court to grant it a constitutionally impermissible and outrageous award of at least $30,000 in statutory damages, ranging up to $150,000.00 in this matter, in addition to $1,850.00 in costs and attorney’s fees — all based on specious infringement claims for forgotten newspaper articles whose economic value is surely orders of magnitude below these astronomical sums,” the bloggers’ filing said.

“When a get-rich-quick scheme is premised on buying damaged goods after the damage occurs, the get-rich-quick scheme itself should not be compensated for specious ‘losses’ to an ‘asset’ it would never have bought but for the supposed infringement,” the filing said.

The bloggers challenged Righthaven’s right to sue over the copyrights it acquires, though Nevada federal judges in preliminary rulings have already upheld this right.

Nevertheless, the bloggers charged: “Either the Review-Journal and Stephens Media are ‘selling lawsuits,’ which is impermissible...or Righthaven is simply a law firm in disguise, engaged in champerty, which is impermissible in Nevada, as it is almost everywhere legal ethics and fundamental justice are a concern of the law.”

Champerty is an arrangement where a party with no interest in a lawsuit agrees to finance litigation in exchange for a portion of the proceeds.

“Left unchallenged, 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, as is the situation in this case. 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,” the bloggers said.

The bloggers complained the maximum damages sought by Righthaven against Hyatt amount to an “astronomical” demand — a demand so far removed from any actual harm by the alleged infringement that it would violate Hyatt’s due process rights under the U.S. Constitution.

They also argued, as have other attorneys, that there’s nothing in the Copyright Act allowing Righthaven to seize Hyatt’s website domain name. Righthaven has conceded this, but has argued such domain name seizures are appropriate as a matter of equity.

Righthaven hasn’t responded to the bloggers’ filing and Dawson has yet to indicate when he’ll rule on Righthaven’s request for damages.