Righthaven

The End of the Road?

patentadmin — Thu, 03 Nov 2011 01:44:23 +0000

The End of the Road?

It looks like the gig may be up for Righthaven LLC, the "copyright troll" that filed 275 copyright infringement lawsuits against website owners, bloggers and even message board posters without actually owning the copyrights in question.

On Tuesday, November 1, the Federal District court in Las Vegas ordered the U.S. Marshals to seize over $63,000 in assets from Righthaven. That amount would cover not only $34,045.50 in legal fees awarded to Wayne Hoehn - the defendant in one of Righthaven's unsuccessful lawsuits - but also an additional $30,000 that the Randazza Legal Group has spent in efforts to get Righthaven to pay the $34K.

We've written extensively about Righthaven on this blog, so we won't recap the whole sorry story here. But this might be the last post on the subject: Righthaven says it faces bankruptcy if a creditor such as Hoehn seizes the company's assets. (However, its cash crunch hasn't prevented Righthaven from continuing to pay attorneys litigating its other cases in Nevada, Colorado and South Carolina.)

The lesson to be learned: Isn't it obvious? Make sure you have standing before you bring a lawsuit!

patentadmin Wed, 11/02/2011 - 21:44

Add new comment

Righthaven, Wrong Plaintiff

patentadmin — Fri, 28 Oct 2011 17:29:51 +0000

Righthaven, Wrong Plaintiff

It's becoming increasingly obvious that the business model of Righthaven LLC was, in fact, very wrong - evidenced by the fact that it has been ordered to pay nearly $120,000 in attorney fees and court costs to the defendant in one of its failed copyright infringement suits.

For those who haven't been following the Righthaven saga on our blog and on our Patent Infringement News page, Righthaven established a reputation as a "copyright troll" when it sued individuals - on behalf of publications, usually local newspapers but sometimes larger papers - for posting copyrighted articles on their websites. Often the copyrighted articles were "puff pieces" or vanity articles.

Basically, Righthaven's business model involved signing agreements with publications to act as their copyright enforcer, suing anyone who used their content without permission and negotiating settlements. Beginning in March 2010, Righthaven filed 274 lawsuits in Nevada, South Carolina and Colorado against website owners and bloggers who reposted content from the Las Vegas Review-Journal and the Denver Post. And in the beginning, many defendants simply settled.

The problem: Righthaven doesn't actually own, or have any share in, the copyrighted material it enforces. And without full and complete control of the copyright(s) at issue, Righthaven lacks standing to bring lawsuits on behalf of its clients.

Now that Righthaven is losing its lawsuits due to the fact that it had no right to bring them in the first place, the damages are snowballing. The troubled company is having trouble coming up with damages payments of $3,815 and $34,000 from previously dismissed lawsuits, and now it has been ordered to pay $119,488 to Thomas DiBiase - a former federal prosecutor whose website follows "no-body" murder cases, or those in which murder is suspected but no remains are found.

The case against DiBiase, like some of the others Righthaven has lost, was dismissed on the basis of "fair use" instead of standing. DiBiase's posting of articles was found to provide a public service to law enforcement officials and thus constitutes a fair use of the copyrighted material.

What's next for Righthaven? More woes, most likely: The award of attorney's fees and costs in Righthaven's dismissed lawsuit against the Democratic Underground is expected to surpass even that in the DiBiase case. And Righthaven reportedly can't even raise the funds to cover the $34,000 award to another defendant, Wayne Hoehn.

The lesson to be learned: If you sue for copyright infringement, better make darn sure you own the copyright.

patentadmin Fri, 10/28/2011 - 13:29

stand up and fight

While it's good news to many that courts are deciding that Righthaven is in the wrong, it's too bad that some defendants initially settled. While settling troll suits may often seem to be in a company's best interests, economically and otherwise, the turn of events for Righthaven defendants can also be seen as a situation in which it might have been advisable to fight. But then, hindsight is 20/20.

Add new comment

Add new comment

Wrong Approach

patentadmin — Tue, 23 Aug 2011 17:08:02 +0000

Wrong Approach

Apparently hewing to the old adage that the best defense is a good offense, Righthaven is vigorously arguing in support of a motion it has filed seeking leave to amend the complaint in one of the many copyright infringement suits it has pending before the U.S. District Court for the District of Nevada. Righthaven LLC v. Pahrump Life et al.

Taking up the cudgel on behalf of Pahrump are the Democratic Underground LLC and the Citizens Against Litigation Abuse, Inc., both of which have filed a combined amici curiae brief in opposition to the motion.

Righthaven has responded that this brief is “troubling in … its tone,” and that its “unbridled accusations, such a ‘fraud upon the Court,’ have no place in zealous, but tempered, advocacy.” Righthaven dismissed the brief as merely “an exercise in loud table pounding – all they have accomplished is making a lot of noise.”

What is all of this about? Well, seemingly Righthaven has taken to heart the finding of the Court that the Strategic Alliance Agreement, newly and reluctantly entered into evidence, does not convey to Righthaven the necessary standing to sue for copyright infringement. Simply stated, the Court held that Righthaven doesn’t own the copyright in question and, therefore, can’t sue for its infringement.

Seeking to remedy this little shortcoming, Righthaven and Stephens Media (the original copyright claimant) have executed a new agreement, creatively entitled “Restated and Amended Strategic Alliance Agreement.” They want the case to go forward, with the new and improved agreement replacing the old and discredited one. Pahrump’s new-found friends, obviously, object to this on a variety of legal grounds.

As we have previously noted (see our blog entry A Step Too Far), the real issue here is the potential claims, by the many Righthaven defendants – or, depending on your viewpoint, victims – for attorney’s fees. Personally, we think Righthaven is only digging itself a deeper hole with its continued enforcement efforts and aggressive stance.

patentadmin Tue, 08/23/2011 - 13:08

in complete agreement

I agree. Righthaven screwed up, and therefore it's time they tried to make nice, instead of getting ever more aggressive -- but that is a common mistake, and one for which they'll most likely pay dearly.

Add new comment

Add new comment

Strange Bedfellows

patentadmin — Mon, 15 Aug 2011 19:46:00 +0000

Strange Bedfellows

We have written many times about Righthaven, the über troll of the copyright world. In our last blog we noted that the tide had seemingly turned. Rather than merely settling with Righthaven, defendants were arguing that Righthaven lacked standing to sue and were seeking to recover their attorney’s fees and costs. Well, the matter has now reached the point where we find a third party, Electronic Frontier Foundation, filing an amicus curiae (literally, “friend of the court,” in reality, “self-serving”) brief in support of the defendant in one of Righthaven’s more ill-advised shakedown suits. Righthaven, LLC v. Leland Wolf et al.

While we do not often agree with the E.F.F., in this instance we can only applaud the position they have taken, namely that Righthaven is not the “owner of an exclusive right under a copyright…and, therefore, is not entitled to sue Mr. Wolf or any of the other defendants in the dozens of lawsuits it has filed in this District…” (The District of Colorado). As pointed out by the E.F.F. “[t]his case will call on this Court to address whether a non-publishing litigation company may build a business suing bloggers and websites based on a purported transfer of the bare right to sue” (emphasis added).

The E.F.F. argues that the “Strategic Alliance Agreement” between Righthaven and the copyright claimant, the Denver Post, failed to convey ownership of the copyrights to Righthaven. The E.F.F. maintains that Righthaven merely obtained “a limited revocable assignment (with a license-back) of copyright…” from the Denver Post, allowing it to secure copyright registrations identifying it as the copyright owner. Righthaven then filed lawsuits with the understanding that the “real copyright owner would ultimately enjoy the copyright registration.”

The Strategic Alliance Agreement apparently comprised two parts, an “assignment” document which was designed to be shown in Court and a separate, secret agreement which explained – according to the E.F.F. – the “true” nature of the relationship between Righthaven and the Denver Post. Herein lies the heart of the matter. This agreement specified that “[d]espite any Copyright Assignment, Publisher (the Denver Post) shall retain…an exclusive license to Exploit the…Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit…other than the right to proceeds in association with a Recovery.”

As the E.F.F. repeatedly noted, the Court in Nevada, which had previously considered this agreement, found “the plain and simple effect of this section was to prevent Righthaven from obtaining, having, or otherwise exercising any right other than the mere right to sue…” The law – as cited by the E.F.F. – requires that a party “Can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright.” Thus – according to the E.F.F. – Righthaven lacks “standing,” i.e. the legal right, to sue for infringement of the subject copyright.

As described by the E.F.F., “Righthaven and Stephens Media (the owner of the Denver Post) have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar. Righthaven’s business plan is encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.”

Well, the E.F.F. seems determined to shut down this industry once and for all. To that end, the E.F.F. has urged the Court to dismiss the subject case with prejudice, thus barring Righthaven from amending the Strategic Alliance Agreement and refiling its suit. More importantly, a dismissal with prejudice could lead to a holding that the defendant, Wolf, is the “prevailing party” and is entitled to recover his costs and attorney’s fees.

Yes indeed, Mr. Wolf is joining a growing legion of Righthaven defendants who are seeking recovery of their attorney’s fees. We hope that they succeed.

The Lesson To Be Learned – don’t rely on supposedly secret “side” agreements; nowadays there are no secrets.

patentadmin Mon, 08/15/2011 - 15:46

beating back the tide

I think the standing issue is a brilliant way to combat the attempted rise of copyright trolls. Bravo.

Add new comment

Add new comment

A Step Too Far

patentadmin — Tue, 21 Jun 2011 02:05:34 +0000

A Step Too Far

As famously said by Kenny Rogers, “ya gotta know when to hold ‘em, know when to fold ‘em, know when to walk away…”. (Righthaven, LLC. V. Buzzfeed Inc. et al.)

As all of our loyal readers know, Righthaven is the first of a new breed – the copyright troll. Heretofore, Righthaven had been doing reasonably well financially, filing hundreds of copyright infringement lawsuits and collecting nuisance settlements. Then it brought a suit against the Center for Intercultural Organizing (“CIO”), a particularly sympathetic defendant. The judge in the CIO case granted summary judgment to the defendants, holding that their unauthorized reprinting of the ENTIRETY of a copyrighted article was a legally permitted “fair use.” This decision came on the heels of a little noticed but potentially more significant decision of another court, which called into question Righthaven’s standing to sue. The second court had looked at the Strategic Alliance Agreement (“SAA”) between Righthaven and the copyright owners. Yes indeed folks, it turns out that Righthaven may not have actually owned the copyrights which it sued to enforce. Righthaven had received an “assignment” of the copyrights, along with a contractual obligation to enforce them against infringers in exchange for half of any net recovery. The other half of the recovery went to the original copyright owner, which also retained an “exclusive license to continue to display or otherwise use” the allegedly assigned copyrighted works.

Undeterred by these two decisions, Righthaven filed suit against Buzzfeed, “an international, informational and interactive news site that keeps track of the viral web in real time and highlights the news as it emerges on the Internet.” As it turned out, this action was ill-advised.

Buzzfeed apparently had been keeping track of the viral web and news highlights. It filed an Answer incorporating the most effective arguments raised by previous defendants; namely, that the use by Buzzfeed was a legally-permitted fair use and that Righthaven was not the “real party in interest” and lacked standing to sue. For good measure, Buzzfeed also maintained that Righthaven’s claims were barred by copyright misuse and that Righthaven’s action violated Buzzfeed’s constitutional First Amendment rights (for those readers who flunked civics, that’s freedom of speech). Buzzfeed further maintained that Righthaven had not suffered any damages by the alleged infringement and if it had suffered any damages, it had failed to take action to mitigate them.

All of the foregoing was bad enough, but the real shocker came in the form of Buzzfeed’s counterclaim. Buzzfeed claims, on behalf of itself and others similarly situated, that “Righthaven brought suit in the State of Colorado not to seek the relief requested in the lawsuit, but for the ulterior motive of requiring the Class Plaintiffs to spend money litigating in an inconvenient forum and in the expectation that the Class Plaintiffs would abandon their defenses.” Righthaven, in fact, has brought 57 suits in Colorado. Buzzfeed now seeks recovery of damages suffered by itself and the 57 others.

Meanwhile, back in Nevada, Righthaven – which is seemingly incapable of learning from experience – had also filed suit against yet another ill-chosen defendant. (Righthaven LLC v. Democratic Underground, LLC et al.)

The Democratic Underground hosts a website where users may post comments. One user posted a comment which included a portion of a Las Vegas Review-Journal (“LVRJ”) article about Nevada politics. The posting included a link to the full article and the LVRJ website. The LVRJ is one of the publications which has entered into a business relation with Righthaven. On the basis of this relation, Righthaven brought suit against the Democratic Underground.

Being a combative organization, the Democratic Underground responded aggressively to the lawsuit. In particular, it raised the question of standing to sue. The Nevada court found this argument convincing. “The plain and simple effect of [the Strategic Alliance Agreement] was to prevent Righthaven from obtaining, having, or otherwise exercising any right other than the mere right to sue as [the original copyright owner] retained all other rights…[the Copyright Act] defines and limits the exclusive rights under copyright law. While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights. Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.” Righthaven’s case was summarily dismissed. That, however, was not the end of the matter.

In his decision, the Nevada judge noted that, “Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles…[and] Righthaven also failed to disclose [the identity of the original copyright owner] in its certificates of interested parties, despite [that party’s] right to proceeds from these lawsuits.” This last omission, which the Court characterized as “brazen,” applied to approximately 200 cases filed in Nevada. “Accordingly, the Court orders Righthaven to show cause…why it should not be sanctioned for this flagrant misrepresentation to the Court.”

Yes indeed, folks, Righthaven is in deep doo-doo in both Colorado and Nevada. It would not surprise us if it wound up paying out all of its ill-gotten gains – and then some.

The Lesson To Be Learned: All good things come to an end; accept that fact and don’t push your luck.

patentadmin Mon, 06/20/2011 - 22:05

Add new comment

No Response, No Comment

patentadmin — Fri, 24 Dec 2010 03:00:00 +0000

No Response, No Comment

Having just written a blog about one church suing another church for servicemark infringement (see God Is On Our Side), we now find an entrepreneur suing a porn website for infringement of a copyright on an article about a church. (Righthaven LLC v. Hush-Hush Entertainment, Inc. et al.)

Righthaven is, not to put too fine a point on it, a copyright troll. Righthaven, in the person of Steve Gibson, purchases copyrights of articles from local newspapers and sues the individuals or organizations which reprint or, more often, post them on their websites (see our previous blog post, WARNING).

Hush-Hush is a – presently suspended – California corporation which owns the website pornnewz.com. PN Media Inc., part of the “et al.,” is the website host. Hush-Hush posted an article entitled, “XXXChurch.com strives to demonstrate Jesus’ love overcomes any stigma,” about “a church that ministers to pornography stars, exotic dancers and prostitutes in the [where else] Las Vegas, Nevada area.” The copyright to this fascinating article is presently owned by Righthaven.

Righthaven sued the defendants for the unauthorized posting of this work and for failing to “proactively” attempt to “preclude the posting by others of copyright-infringing content,” or to “monitor,” or “delete,” or “address” such postings. Righthaven claims it will be “irreparably harmed” unless the defendants are enjoined from further infringement of its rights to this literary masterpiece. As compensation for its suffering, Righthaven seeks statutory damages, costs, disbursements, attorney’s fees, and pre- and post-judgment interest.

To date there has been no response from the defendants, nor any comment from the porn stars, strippers or hookers.

patentadmin Thu, 12/23/2010 - 22:00

Add new comment

Warning!

patentadmin — Thu, 19 Aug 2010 17:05:30 +0000

Warning!

Lawyers are always on the lookout for new ways to make a buck, as evidenced by the recent emergence of the "marking troll".

Newspapers, especially local or neighborhood newspapers, are wont to publish brief articles lauding local individuals or businesses, so-called “puff pieces.” The individuals or businesses are wont to copy these articles onto their websites, blogs, or other electronic forms of self-aggrandizement.

Steve Gibson, an attorney, is the CEO of RightHaven, which has begun buying the copyrights to these articles. RightHaven then sues the unfortunate egomaniac for – you guessed it – COPYRIGHT INFRINGEMENT. Given that the plaintiff in such an action may elect statutory minimum damages of up to $150K, Steve is in a position to exert real pressure on the defendants to settle quickly. Settlements in these cases are typically in the range of $1,500 to $3,500 – about what it would cost to hire a defense attorney.

Steve currently has relations with about 70 newspapers and is seeking to expand. He has already filed over 80 suits, with “hundreds more … already in the works. We perceive there to be millions, if not billions, of infringements out there.”

So, all you electronically-savvy but copyright-challenged folks, BE WARNED. There may be a troll out to get you.

patentadmin Thu, 08/19/2010 - 13:05