Sunday, March 13, 2011 | 5:56 p.m.
Newspaper copyright enforcer Righthaven LLC of Las Vegas is fighting challenges to its business plan and assertions lawsuit defendants are protected by the concepts of fair use and implied license.
Righthaven, the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post, has filed at least 249 lawsuits in the past year charging website owners, bloggers and message-board members re-posted material from those newspapers without authorization.
The suits lately demand $150,000 apiece in damages and forfeiture of the defendants' website domain names.
The lawsuits are a departure from the usual newspaper industry practice of resolving copyright issues out of court.
Righthaven says the suits are necessary to deter extensive online infringements of newspaper material, but critics say the suits are part of a settlement shakedown scheme since defendants find settling with Righthaven is far less expensive than hiring attorneys to fight the suits.
Righthaven won a clerk's default in one of its cases after defendant Bill Hyatt failed to answer the suit over a Review-Journal column and Righthaven is now seeking control of Hyatt's 1ce.org website domain name, $150,000 in damages and $1,850 in attorneys fees and costs.
The Media Bloggers Association is trying to intervene in that case as a friend of the court and has urged the court to award Righthaven only minimal -- if any -- damages, charging Righthaven is running a "get-rich-quick" scheme.
In challenging Righthaven's business model, the bloggers' group said Righthaven's litigation campaign 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 Media Bloggers said Righthaven's business model is "cynical and ethically questionable" as its copyright transfer arrangement with Stephens Media LLC, owner of the Review-Journal, is "impermissible" as an exclusive ownership interest in copyrights is required for lawsuits.
In the Righthaven cases over Review-Journal material, attorneys say Stephens Media appears to maintain an economic interest in the copyrights at issue, something being explored in another Righthaven lawsuit against the Democratic Underground.
In preliminary rulings denying motions to dismiss, Nevada federal judges have upheld Righthaven's right to sue based on the copyrights it receives from Stephens Media. Democratic Underground attorneys with the Electronic Frontier Foundation say new evidence supports its claim these are "sham" copyright assignments -- assertions disputed by Righthaven.
The Media Bloggers Association also said the court could find Hyatt was an "innocent infringer," limiting damages to $200, since "Hyatt may have believed he had an implied license to share the article, as there was a link encouraging viewers to e-mail the article to others on the page where it appeared."
In disputing these assertions last week, attorneys for Righthaven urged U.S. District Judge Kent Dawson to not allow the Media Bloggers Association (MBA) to participate in the case as a friend of the court.
"MBA is by no means a friend of the court. MBA is clearly acting in an adversarial capacity in defense of a defendant against whom default has been entered," said a filing by Righthaven attorney Shawn Mangano. "MBA’s proposed brief reads like it was disseminated on an anti-Righthaven blog – not by counsel for an alleged association of Internet bloggers."
Righthaven also filed papers last week opposing efforts by message-board poster Wayne Hoehn of Bowling Green, Ky., to have his case decided on a motion for summary judgment on fair use grounds, which would bypass the evidence-gathering procedure known as discovery.
Hoehn's attorney said his post on a message board of a Review-Journal column about public employee pensions "was identical to a man cutting out a newspaper article and posting it on a community bulletin board" with the goal of encouraging discussion and debate on a matter of public importance.
Mangano, however, argued last week that Hoehn's post was more like a book club "where the participants were given unauthorized, free photocopies of an author’s book to read and discuss."
"Or, under (a) bar patron scenario, topics contained in a news article would have been photocopied from a purchased copy of the newspaper and distributed to all in the bar free of charge and without the newspaper's consent," Mangano wrote in his filing.
"Under either of the foregoing scenarios, the author or source of the copyrighted work is deprived of the right to control its dissemination and enjoy the benefits associated with such control. Defendant misappropriated a copyrighted editorial piece, cut and pasted it on another website and made it available for all users of and visitors to the website to read," Righthaven's filing said. "In this regard, defendant did not write his own synopsis of the editorial piece or merely post a link back to the editorial as it appeared on the source publication's website. Defendant simply took the easiest path for accomplishing his stated goal – he took it without permission and used it for his own benefit."
Righthaven argued summary judgment is inappropriate at this stage of the case since it hasn't yet had a chance to contest or explore Hoehn's contentions through written and oral discovery.
In a third case that Righthaven responded to last week, it asked the federal court in Charleston, S.C. to throw out a counterclaim against Righthaven filed by blogger Dana Eiser.
Eiser was sued after a Denver Post column was re-posted on her website and in her counterclaim her attorneys said the post was protected by fair use, implied license and the First Amendment.
Eiser's attorneys also attacked Righthaven's business model, saying it had no authority to sue over the copyright in question; and accused Righthaven of violating South Carolina's Unfair Trade Practices Act by wrongly branding Eiser a copyright infringer.
Righthaven attorney Edward Fenno, in seeking to have these claims dismissed, said in court papers: "It appears that Eiser simply filed these counterclaims in an attempt to divert the court and the parties from the true issue at hand – Eiser’s infringement of Righthaven’s copyright."
"Eiser’s alleged losses, while perhaps appropriate in a defamation cause of action, do not trigger liability under the Unfair Trade Practices Act," Fenno wrote. "The gravamen of Eiser’s Unfair Trade Practices counterclaim is that her `reputation and good name' were harmed by allegedly false statements filed in Righthaven’s complaint contending that Eiser was a copyright infringer," Fenno's filing said. "However, allegations made in a lawsuit complaint or otherwise in a judicial proceeding are absolutely privileged against defamation claims in South Carolina.
"Eiser fails to allege sufficient `public interest' to state a claim under the Unfair Trade Practices Act. While Eiser alleges that Righthaven has `brought more than 239 claims for copyright infringement throughout the country, and will undoubtedly be filing many more,' Eiser fails to allege that any such claims have or will impact anyone in South Carolina besides Eiser. The Unfair Trade Practices Act is not available to address a private wrong where the public interest is unaffected," the Righthaven filing said.
The judges in the Hyatt, Hoehn and Eiser cases haven't yet indicated when they may rule on the pending issues in those cases.
In a fourth Righthaven case, defendant Thomas Neveu filed an "official complaint" with the federal court in Las Vegas about Righthaven's litigation tactics.
Neveu, Thomas Richard and an entity called Climate Change Fraud were sued in September by Righthaven over allegations Review-Journal material was posted without authorization on the website climatechangedispatch.com.
Neveu, of Dorchester, Mass., hit Righthaven and Stephens Media with a counterclaim in December.
Neveu represents himself without an attorney. In his most recent filings, he said he told Righthaven in January that for medical reasons he couldn't participate in discovery conferences for at least six months and that Righthaven then used "threatening tactics to supersede my legal rights."
"Since December 2010, Righthaven, and more specifically Mr. Mangano, have engaged in continuously unprofessional behavior in an attempt to take advantage of my pro se status and squeeze a settlement out of me," Neveau complained to the court. "Mr. Mangano even had the audacity, after being provided with documentation from my doctor, to grant a discovery extension for two months if I dismissed my counterclaim. In other words, he tried to blackmail me into dropping my countersuit."
An email attached to his complaint from Mangano to Neveau notes: "Please keep in mind that YOU filed a counterclaim against Righthaven LLC and a third-party complaint against Stephens Media LLC. As such, this is not a case where you were merely defending claims brought against you. Rather, you have chosen to seek affirmative legal recourse against Righthaven and Stephens, both of which have incurred and will continue to incur legal fees defending your baseless claims."
The Jan. 14 e-mail indicated Righthaven offered to stay litigation in the case for 60 days if Neveau would drop his counterclaim against Righthaven and his complaint against Stephens Media with prejudice, meaning they could not be re-filed.
"These are not points open for negotiation," the email said. "You have until the close of business today to respond to this proposal."
Righthaven and its attorneys have not yet filed papers responding to Neveu's complaint.
In a fifth extensively-litigated case, Righthaven asked for a clerk's default against New Hampshire blogger Christopher Malley and his website EMTCity.com, serving the emergency medical technician community.
Righthaven has so far prevailed in motions for dismissal filed by Malley's attorneys and on Friday asked for the default, charging Malley hadn't filed an answer to the lawsuit that Righthaven says was due on Feb. 7.
This caused Malley's attorneys with the Las Vegas office of the law firm Lewis and Roca LLP to respond the same day, alleging Righthaven violated a rule in the Nevada Rules of Professional Conduct.
The rule says that when an attorney knows a defendant is represented by counsel, the attorney must "not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer’s intention to proceed."
Righthaven is well acquainted with Lewis and Roca, which has represented several Righthaven defendants.
"There is no excuse for Righthaven’s filing of the present motion without first contacting defendant’s counsel. Righthaven’s disregard of the Nevada Rules of Professional Conduct and its surprise `gotcha' motion flies squarely in the face of Rule 3.5A, this court’s Local Rule 10-7(a), and local practice. This type of sharp practice should neither be rewarded with an entry of default nor tolerated by the court," said the filing by Lewis and Roca attorneys, who asked the court clerk to hold off on the default petition until Wednesday so the attorneys on both sides could "confer."
Malley says he didn't willfully infringe on Righthaven's copyright to a Review-Journal story since the story at issue was posted by a third party message-board poster, "Dust Devil;" and his attorneys have repeatedly called Righthaven's lawsuit "nothing more than a bad faith attempt to shake Mr. Malley down for a settlement."
Righthaven hasn't yet responded to the latest Lewis and Roca filing.
Also, a Righthaven lawsuit against CustomerThink Corp., Robert Thompson and Joseph Michelli; allegedly associated with the website CustomerThink.com and over a Denver Post TSA pat-down photo, was closed after a confidential settlement was reached.
But Righthaven voluntarily dismissed a June 4 lawsuit against The Prescription LLC and RX Advertising Inc. with no mention of a settlement. Righthaven voluntarily dismissed that case, saying the defendants hadn't responded to the complaint. It was dismissed without prejudice, meaning the allegations can be reasserted in the future. Records show one of the defendants, RX Advertising, was served with the lawsuit in July. Those defendants were accused in the lawsuit of posting a February 2010 Review-Journal column on the therxforum.com website, which focuses on sports betting.
Elsewhere, Righthaven observers are waiting for two recent high-profile defendants -- Citadel Broadcasting Co. and Toronto Star Newspapers Ltd. -- to answer the Righthaven lawsuits against them over the Denver Post pat-down photo.
Righthaven also faces a hearing this week in Las Vegas before U.S. District Judge James Mahan, who has ordered the company to show cause why its lawsuit against the Center for Intercultural Organizing in Portland, Ore., shouldn't be dismissed on fair use grounds. That case involves an entire Review-Journal story about immigrants that was posted on the center's website without authorization.