By Wendy Davis - The Daily Online Examiner
Copyright enforcement outfit Righthaven hasn't had much luck lately. First, the company got into a public fight with a federal judge in Colorado. Righthaven last week filed papers withdrawing its poorly thought-out lawsuit against the autistic 20-year-old blogger Brian Hill, but added some gratuitous comments berating Hill and his mother for refusing to agree to Righthaven's settlement demands.
"Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes," the company wrote.
U.S. District Court Judge John Kane in Denver then took the rare step of spontaneously striking all of Righthaven's extraneous remarks, leaving only its statement that it was withdrawing the lawsuit as part of the record.
Legally, that shouldn't matter to Righthaven. After all, the critical point is that it is ending the case, and not its self-serving opinion that it acted properly. But Righthaven doesn't seem to know when to quit. The company refiled its original withdrawal papers, and added that Kane lacked authority to strike the comments.
While some litigators are more aggressive than others, it's a safe bet that not too many attorneys would have done likewise -- especially considering that Kane is presiding over all of Righthaven's 58 cases in Colorado concerning infringement of material that originally appeared in The Denver Post.
Of course, if Righthaven was better at calling its shots, it might not have sued an autistic and seriously ill 20-year-old blogger who supports himself on disability.
And that's only the beginning of the problems for Righthaven, which has sued more than 250 bloggers, small publishers and nonprofits for allegedly reposting material that originally appeared in the Las Vegas Review-Journal and Denver Post. Righthaven has filed all of its lawsuits without first complaining to the sites or asking them to remove the material. The company typically seeks up to $150,000 in damages, attorneys' fees and transfer of the defendants' domain names, but has settled many cases for amounts believed to be in the four-figure range.
Last week, U.S. District Court Judge Roger Hunt in Nevada removed some of Righthaven's leverage by ruling that it isn't entitled to seek defendants' domain names and might not be able to recoup attorneys' fees, even if it prevails in its lawsuits. In that case, the blogger, former prosecutor Thomas DiBiase (represented by the Electronic Frontier Foundation) argued that attorneys' fees aren't appropriate because Righthaven doesn't hire lawyers to represent it. Rather, Righthaven is an organization of lawyers that exists solely to bring copyright infringement claims. Hunt wrote that he found "merit" in DiBiase's reasoning, but that a ruling on attorneys' fees is premature because the case hasn't yet gone to trial, according to Las Vegas Sun reporter Steve Green.
But that's not all. Hunt last week also unsealed Righthaven's contract with Las Vegas Review-Journal owner Stephens Media, despite Righthaven's "feeble" attempt to keep it confidential. "As I have read these and other motions in the case, and considered the multitude of cases filed by Righthaven," Hunt wrote, "it appears ... that there is certainly an interest and even a right in all the other defendants sued by [Righthaven] to have access to this material."
That contract, entered into in January of 2010, grants Righthaven the ability to sue those who repost the Review-Journal articles, but specifies that Stephens Media alone retains the right to license the material. In exchange, Righthaven promises to give Stephens Media 50% of whatever it recovers from the bloggers it successfully sues.
Already some defendants are arguing that this contract undermines Righthaven's business on the ground that it's inconsistent for the company to claim it's been injured by alleged copyright infringement when it lacks the ability to collect royalties from the material.
Whether or not the courts will agree isn't clear. But the contract certainly seems to leave Righthaven vulnerable to protracted litigation over whether it was entitled to sue in the first place.
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