Media Bloggers Association Stands Up To Copyright Troll Righthaven

It is unfortunate that Righthaven and the companies it "buys" the copyrighted property from are willing to financially wreck a person, often for mere carelessness as they are attempting to add to the public conversation.

Media Bloggers Association

David Makarewicz, Contributing Writer
Activist Post

Today, the Media Bloggers Association ("MBA") filed its Reply Brief in theRighthaven, LLC v. Hyatt case.  The MBA is opposing Righthaven's attempt to convince the Nevada District Court to award it $150,000 in damages, the domain name for blogger Bill Hyatt's website (1ce.org)  and attorneys' fees.

Hyatt was sued by Righthaven last October after he allegedly copied a Las Vegas Review-Journalcolumn titled "FX's Manly Man Shows Hold Outsider Appeal."  When Hyatt did not respond to the lawsuit, he was defaulted by the court clerk's office.

A default is basically the equivalent of an admission of all liability by the defendant.  If the default is not set aside, the Court will skip the trial on the merits of the copyright claim and proceed directly to a determination of the damages against Hyatt.

The MBA, a national bloggers organization, filed an Amicus Brief last month against Righthaven.  An Amicus Brief is filed when an organization such as the MBA is not a party to a lawsuit but asks for permission to file a brief as a "friend of the court" that can offer arguments or information to assist the court in making its decision.

In its briefs, the MBA has argued three main points on behalf of bloggers such as Hyatt:

1.  Righthaven is not a legitimate copyright holder because Righthaven publishes nothing itself and only acquires the assignment of rights to the materials after discovering a copyright infringement that will provide the basis for a lawsuit.  Further, the MBA hints that the wording of the assignment of the rights might include a "reversion" that will restore the property rights to the Las Vegas Review-Journal after the lawsuit is concluded.

2.  The Las Vegas Review-Journal is violating Nevada law by “selling lawsuits” to Righthaven.  The MBA argues that if it is not selling lawsuits, the only alternative is that Righthaven is "simply a law firm in disguise, engaged in champerty."  Champerty is where someone without an interest in a lawsuit makes a financial arrangement by which it will fund the suit in exchange for a share of any verdict or settlement.  Most jurisdictions do not permit the practice.

3.  $150,000 and the loss of a domain name are grossly unfair damages that would violate the Due Process clause of the Constitution.  Among other protections, the Due Process clause ensures that a defendant normally is not required to pay damages beyond the amount the plaintiff actually suffered as a result of the defendant's actions.  In this case, MBA argues that the court should limit damages because of the public interest in citizen journalism and the fact that Hyatt was, at worst, an innocent infringer.  The MBA goes even further with its argument against awarding Hyatt's domain name to Righthaven because of the tremendous value of a domain name and Nevada's laws that prohibit a court from awarding personal property in a copyright case.

Righthaven has opposed the MBA's request to file the Amicus Brief and asked the Court to block the MBA from participating in the proceedings against Hyatt.  The Righthaven opposition filing stated, "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."

The MBA has responded that it is only interested in preserving the rights of the bloggers in its organization, not to act as a secret attorney for Hyatt.  In its Reply, the MBA stated, "Contrary to the insinuation by Righthaven, there is no alliance between [the MBA] and Defendant Bill Hyatt."

Internet publishers need to continue to pay close attention to the rulings that come out of all of these Righthaven cases.  The average blogger does not have the resources to simply buy his way out of a lawsuit like Drudge did last month.  Therefore, it is critical to know exactly what the law will and will not permit him to do with other sites' words and photos and exactly what the consequences will be if he ignores the law.

It is unfortunate that Righthaven and the companies it "buys" the copyrighted property from are willing to financially wreck a person, often for mere carelessness as they are attempting to add to the public conversation.  However, if there is an upside, it is that the challenges to these lawsuits, such as this one by the MBA, will hopefully give the Courts the opportunity to create a workable set of guidelines for Internet copyright that eventually puts an end to the uncertainty that allows these extortion schemes to succeed.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs.  Visit Dave at Sites and Blogs to keep up with breaking Internet news.

RECENTLY by David Makarewicz:
Jury Says Blogger Forced to Pay Even Though He Did Not Lie
5 Ways DHS Violates The Constitution With Domain Seizures

Enter your email address to subscribe to our newsletter:


Delivered by FeedBurner

How to Blog: Share, Link, be Consistent

Slate puts on the web today some tips from Arianna Huffington's new book on blogging. See Slate's "How to Blog."

Here is the truncated list on best practices on blogging (bloggers, including Josh Marshall have told me that consistency and uniqueness are the keys):

1. Set a schedule. Blog often. Jeff Atwood, who runs the fantastic programming blog Coding Horror, told me that the key to his early success was sticking to a realistic target of six posts a week.

2. Don't worry if your posts suck a little. Unless you're Jeffrey Goldberg, your first blog post is unlikely to be perfect. Indeed, a lot of your posts aren't going to be as great as they could be if you spent many hours on them—and that's OK.

3. Write casually but clearly. This one flows from the last two—the best way to stick to a blogging schedule is to write quickly, and a good way to write quickly is to write as if you're talking to a friend.

4. Add something new. This might seem obvious, but new bloggers tend to forget it: Readers aren't going to stick with you unless you give them something they can't find elsewhere.

5. Join the bloggy conversation. And link! The only way people will find your blog is through other blogs—and you'll get other blogs to notice you by responding to what they're writing about.

6. Don't expect instant fame. Actually, don't expect any fame. There are better ways than blogging to get rich and famous.

It strikes me that sharing, consistency, uniqueness, and volunteerism are themes here, and they happen to be the themes in a lot of business literature on how to be a good worker in the global economy. How to be a good blogger and be applied to life; and many are lessons we learned in in kindergarten.

These themes have also come up over the past several months at the Carnegie Council. "Join the bloggy conversation. And Link!" is like Jay Rosen's "ethic of the link."



Similarly, Lawrence Lessig spoke recently at Carnegie Council's Public Affairs program on sharing economies or a hybrid economy. He sees the hybrid economies as those that combine the value from free and shared labor and commercial value.



The volunteerism that is often done on the web, for example social networking or product ratings, are free work that gives network power to companies. David Grewal also spoke recently about his "network power" concept:

Ethical Blogger Locked Down

Did anyone see the recent South Park episode in which the Internet stopped and the kids went to California to find "more" Internet?

We are experiencing something similar on our other blog, The Ethical Blogger, which has been locked down by Google due to suspected spam-like activity near or around the blog. I feel like I can't use part of the Internet.

With so much email spam in the world, I had proposed a while back that people communicate with one another over blogs to ensure maximum transparency. (Unfortunately, people even libel one another on blogs and YouTube, as the New York Times reported today. When people ask what do we mean by ethical blogging, this article illustrates the problem precisely.) But with blog spam, I guess that medium is not totally reliable either. Of course, The Ethical Blogger is not a spammer.

The Ethical Blogger, which coincidentally has been called a blog of note by Google's Blogger (blogspot), will be back once Google verifies the blog is run by "actual people." In the meantime, we see this apologetic message on our dashboard:

Your blog is locked

Blogger's spam-prevention robots have detected that your blog has characteristics of a spam blog. (What's a spam blog?) Since you're an actual person reading this, your blog is probably not a spam blog. Automated spam detection is inherently fuzzy, and we sincerely apologize for this false positive.

We received your unlock request on April 15, 2008. On behalf of the robots, we apologize for locking your non-spam blog. Please be patient while we take a look at your blog and verify that it is not spam.

Find out more about how Blogger is fighting spam blogs.

I am off to the Delaware shore for some walks on the beach with my family. I hope The Ethical Blogger is back soon.

Alcatraz Guard Tower by vgm8383

Blogging from the Battlefield: "Front Line, First Person"

I am at Brown University's Watson Institute today and tomorrow, attending a fantastic conference, "Front Line, First Person: Iraq War Stories," on soldiers blogging from the battlefield.

The first day's talks are just ending now. Here are a few of my notes from a very emotional and relevant discussion (I am paraphrasing what some of the panelists say below):

Colby Buzzell (blogger, author My War: Killing Time in Iraq) tells his story of how he was deployed in Iraq in 2004. With his blog he was able to tell what really happened despite news stories with contrary information. His blog was turned into his book as well as animated stories for PBS. Relating to our project, blogs certainly strengthens the truths. He wishes more books and more accounts were written about the war because “it becomes more real.”

Senator Lincoln Chafee retells the story of voting to go to war to Afghanistan days after 9/11. He said things were happening so fast Congressmen were unclear whether they were voting on funding for NYC or war in Afghanistan. After Afghanistan “all of a sudden the drums are beating for Iraq.” People weren’t even deliberating on what a WMD was. Carl Levin asked for the debate to slow down but that failed by the same vote level that authorized the war shortly later. “If the administration wanted to remake the Middle East, let’s have that debate. It didn’t happen.” When visiting Iraq right after the war, Chafee saw people put their hands on their hearts as a sign of respect. A year later, Chafee couldn’t get past the airport road.

Matthew Burden (veteran, blogger, Blackfive; author “The Blog of War: Frontline Dispatches from Soldiers in Iraq and Afghanistan”) – I tried to stay connected to my some 200 friends stationed in Iraq to get to the truth. I started Blackfive to tell the stories that weren’t getting told by the media. The first colonel was supposed to review a soldier’s blog but that was pretty lenient. But there are more violations of operational security on the DOD website than on solders’ blogs. The problem we have now is the speed of the information—that scares some. I would like to have military bloggers have the same restrictions as embedded reporters. Many of the people in my book stopped blogging because of the restrictions put on them. You don’t hear enough of the acts of kindness. Blogs help give a sense of balance to reporting.

Eric Rodriguez (veteran, Brown student) – How do we understand something as horrible as war? My family started the second largest gang in California. I wanted something different. I was born in LA but I wasn’t seen as American as others were. After being homeless, I wanted to join the Army so that people wouldn’t be able to look at my family and wonder if we were American. I believe in service to country, and nothing can change that. My transition to the military was easy because I didn’t have to worry about meals, I got a roof over my head, and I was getting paid. After Iraq happened, I decided to go—I ended up in a Chinook getting shot at. Going to Iraq made me a better person in terms of building character. My dream was to go to college. When I was in a minefield facing death, what was important to me became clear—service to country, getting home and going to college. I wrote a 15-page essay called “Straight Out of My Car” to make sure I didn’t fall victim to my abandonment, my sister’s pregnancy, and other pieces of my past. A few colleges got ahold of it and invited me. I brought my friends and mom to college. I hope from my story you see a humanistic side of the Iraq war. There are a lot of good people over there. It’s not black and white. It is a big, gray, scary area. This morning, I taught a high school sex education class, rewrote my economics paper, and prepared for a quiz. Now I am here talking to you.

SFC Toby Nunn (author, Northern Disclosure, soldier currently serving in Iraq) - I have an ethical obligation to tell the story of my buddies. The result is to try to instill a betterment, a better faith of humanity. There is more to armed conflict than the actual violence. It’s not just the action you see, it is the impact you make—delivering school supplies, developing infrastructure, etc. I am from Canada and am trying to become an American citizen because I want to be part of something great and earn my place in society.

Deborah Scranton showed a clip from her film "The War Tapes," showing how U.S. soldiers tried to save Iraqis after a suicide bomb went off, contrasting with the media reports, which did not show these acts of heroism.