Righthaven defendant cites lies, releases correspondence

By Steve Green

Thursday, March 3, 2011 | 5:30 p.m.

A South Carolina blogger sued by Las Vegas copyright enforcer Righthaven LLC says Righthaven has been spreading lies and misinformation about her and other defendants in Righthaven's 239 lawsuits.

Because of those alleged misrepresentations, an attorney for blogger Dana Eiser says the law allows her to fight back by releasing to the news media Righthaven's settlement demand and other Righthaven correspondence.

Eiser was hit with one of Righthaven's no-warning lawsuits in December after a Denver Post column was posted on her nonprofit website.

Eiser on Thursday released a mail and e-mail exchange between one of her attorneys and a Righthaven attorney, which followed up on correspondence she released Sunday.

A letter from a Righthaven attorney that Eiser released Thursday shows that at least in her case, Righthaven has agreed to drop its controversial lawsuit demand that the federal court seize her website domain name and award it to Righthaven. Eiser's attorneys had threatened to seek sanctions -- including refunds of prior Righthaven settlements -- if that demand was not dropped in her case.

Another issue between the attorneys is Eiser's threat to counter-sue Edward Fenno, Righthaven's local attorney in Charleston, S.C., who filed the Righthaven suit against her.

In a letter from Fenno to one of Eiser's attorneys, J. Todd Kincannon, Fenno asked what grounds Eiser may sue Fenno for and said there was no basis for abuse of process, malicious prosecution or defamation claims.

"If you are considering filing suit against my firm or me, I request that you set forth the grounds in a letter to my attention (or even in a draft complaint for me to review) and give us a chance to explain our side of the facts and law before you actually proceed with filing a suit," Fenno wrote.

That drew a heated response from Kincannon, who wrote back: "Did you give my client that opportunity? Did you send Dana Eiser a list of things you were planning to sue her for prior to filing?"

"You should be embarrassed to ask for a courtesy you didn’t show my client prior to suing her. Besides, we both know filing frivolous lawsuits with no notice to defendants is part of the Righthaven business model, so as to more effectively leverage settlements out of these folks by causing them the intense emotional stress and financial pressure of retaining and paying an attorney in the extremely short window for responding to a complaint," he wrote.

"This is exactly what Righthaven tried to do to my client. Mrs. Eiser’s first notice of a lawsuit against her was when a reporter called to tell her she’d been sued. Her next encounter with the lawsuit was when your process server served her with the summons and complaint. I am genuinely curious as to why we should show you the courtesy of sending you a draft complaint prior to filing suit against you when you afforded my client no such opportunity.

"It’s genuinely funny to me how your perspective has changed now that you are about to be a defendant in a lawsuit," Kincannon wrote.

"Perhaps this experience will serve you well. Perhaps it will moderate your impulse to sue first and ask questions later. Then again, that would go against the Righthaven business model of leveraging settlements through intimidation and abusive litigation conduct," he wrote.

Fenno in his letter also complained Eiser or her counsel have been sending nonpublic correspondence from Righthaven to reporters and asked that non-public information in the case not be provided to the press. He said a South Carolina Rule of Professional conduct bars attorneys participating in litigation from making extrajudicial statements that could prejudice a legal proceeding.

Kincannon responded: "I am further amazed by your audacity in leveling ethical accusations at me over trial publicity when your client’s attorney/CEO has given an interview to the national press where he referred to my client as a member of a community of thieves who has been caught violating the law and where he specifically commented -- falsely -- that defenses raised by my client and others are so absurd that `no one thinks' they could be valid. I would strongly suggest you take a look at the very rule you cited, Rule 3.6 of the Rules of Professional Conduct. Section (c) makes quite clear that in a case such as this, a lawyer may respond to protect a client from substantial undue prejudice caused by publicity," Kincannon wrote.

"If you want my client to stop defending herself in the press against your client’s false claims, I would strongly suggest you muzzle Sherman Frederick and Righthaven CEO Steven Gibson. What is most troubling to me is that Gibson is an attorney who knows better than to say the things he said to Fortune Magazine and CNN while hundreds of these cases, including my client’s, are pending," Kincannon wrote.

"But let’s be completely clear about why you are so concerned about your emails being sent to the press. It has nothing to do with trial publicity, because you all aren’t in the business of taking cases to trial. The real truth is that Righthaven doesn’t want the general public to know the sort of abusive litigation tactics used to leverage settlements, nor does Righthaven want other defendants to learn tactics that work in response," he wrote. "The Righthaven business model fails if your targets actually bother to defend themselves instead of paying nuisance value settlements and moving on.

"In terms of the fear, the worry, and the emotional turmoil that comes with being a defendant in a lawsuit, I expect you will shortly get to experience that yourself. I truly hope the experience enlightens you as to how Righthaven’s victims feel about having their livelihoods, their possessions and their families threatened by abusive Righthaven tactics involving lying about the law and even allusions to physical violence.

"Sherman Frederick compared Righthaven to an automatic rifle with a grenade launcher used to kill people in a movie about drug dealers," Kincannon wrote.

This is a reference to a column by Frederick, then the publisher of the Review-Journal, calling Righthaven "my little friend."

One Righthaven litigant, the Electronic Frontier Foundation representing the Democratic Underground, has said Frederick's "little friend" statement "references the 1983 film Scarface, in which gangster Tony Montana famously said, `Say hello to my little friend!' as he wields an assault rifle against a rival drug lord in the climactic shootout scene."

Kincannon added in his letter: "Steven Gibson, in his aforementioned interview with Fortune Magazine and CNN, suggested that this entire Righthaven enterprise is just his exploration of the limits of federal copyright law in the Internet age. I find no small amount of irony in the fact that you, Mr. Gibson, and various other Righthaven associates are now going to experience my exploration into the limits of South Carolina law on barratry and unfair trade practices committed by lawyers," Kincannon wrote.

Righthaven hasn't yet responded publicly to these criticisms or Eiser's counterclaim, but in his letter Fenno said there's plenty of evidence to show that Eiser infringed on Righthaven's copyright to the Denver Post column.

"It seems clear that your client or her agents copied and displayed copyrighted materials without permission," he wrote. "It still does not appear to me that your client's `fair use' defense and other arguments are likely to prevail in this case."

Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post.