Righthaven's Bad Month Ends With Mistakenly Filed Lawsuit

Electronic Frontier Foundation

David Makarewicz, Contributing Writer
Activist Post

Righthaven has once again tripped over itself while attempting to use the courts to bully a website.

This time, the target was ARS Technica, who have posted an interesting account of the lawsuit filed by Righthaven against one of its freelance writers, Eriq Gardner.  It took less than four days for Righthaven to have to withdraw the copyright infringement suit.  A copy of the Complaint can be found here.

Righthaven was forced to drop the case because the photo at issue (displayed above) wasn't the original image of an overly friendly patdown that was owned by the Denver Post, but rather was the black and white version of the image, which came from Righthaven's own court filing against Drudge, who subsequently settled.
ARS Technica explained:

We strongly believe that the use is fair—indeed, that it is almost a paradigmatic case of fair use. A grainy black-and-white copy of a color photo, used to illustrate a news account about said photo, is the reason we have fair use. I had thought I was immune to feelings of surprise after covering these sorts of legal battles for years, but it turns out I still have the capacity to feel shock. The reaction around the Ars newsroom—and from our legal counsel—was absolute bafflement.

After ARS contacted attorneys for Righthaven, they did not apologize, but explained that there had been "confusion" about the photo.  Righthaven quickly moved for a voluntary dismissal of the case without prejudice (though they messed that up at first and filed a dismissal "with prejudice.")

ARS blames the media organizations that hire Righthaven even more than Righthaven itself.  They write:

It's easy to blame Righthaven for this farce—and, let's be clear, we absolutely do—but no one forced venerable papers like the Denver Post to walk this road. Newspapers have been hard hit recently; it's easy to see why these might cling to anything that might keep them from plunging over the cliff, but this work with Righthaven embarrasses their brands, their missions, and their long history. It's beneath them. We hope they find a better path back to profitability.

I agree, though I have to blame the lawyers at least a bit because Federal Rule of Civil Procedure 11 requires attorneys to ensure that any document they sign and file in court has evidentiary support and is based on a nonfrivolous legal argument.  Clerical "mistakes" such as this can result in sanctions.

Citizen Media Law Project also has a piece explaining the many ways that Righthaven has blundered and bullied its way into weakening the copyright laws that its clients should be trying to strengthen.

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.

Enter your email address to subscribe to our newsletter:


Delivered by FeedBurner

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