Beating Righthaven LLC

Thursday, November 3, 2011
Beating Righthaven
I’ve been meaning to put up a big entry on my successful defense against Righthaven. I was thinking I’d write some big fancy post on my motion to dismiss, which I filed with the help of David Kerr of Santangelo Law Offices in Fort Collins, Colorado. But I’ve been too busy and haven’t taken the time. So, with recent developments indicating the end is most-likely near for the reviled copyright trolling concern, I might as well post on it for the record.

Righthaven sued me for alleged copyright violation on March 8, 2011. The docket listing is here. The lawsuit claimed that I’d infringed the copyright held by the Denver Post for its picture of the invasive pat down at this article: “Controversy over pat-downs, body scans lands at DIA.” Like dozens of other bloggers, I’d featured a full-size screencap of (the article and) the crotch-grab photograph in a post on TSA’s “touching junk” backlash. I filed a motion to dismiss pro se. Attorney David Kerr provided legal advice pro bono.

Righthaven files “no warning” lawsuits. That is, it gives no advance notification to defendants, which violates the norm of providing “take down notices” to those suspected of copyright violations. By doing this, Righthaven -— which made a speciality out of suing small-time bloggers and “mom-and-pop” businesses -— was able to scare the bejesus out of its targets, who then would settle out of court generally in the three to five thousand dollar range. Defendants were threatened with the possibility of a $150,000 judgment and the forfeiture of their website’s domain name (URL address). Let me tell you: It’s frightening as hell opening up that letter of service and reading the lawsuit. You can’t even believe you’re being sued, but you can’t ignore it or wish it away. A non-response would result in a default judgment, so there’s no time to dilly-dally. No wonder so many defendants settled out of court rather than attempt a legal defense, especially since obtaining legal counsel and going to trial would probably run into the tens of thousands of dollars on average. I first found out about the lawsuit from Steven Green of the Las Vegas Sun, who left me message on Facebook and then the link to this article mentioning me as a defendant.

Righthaven’s model is entirely predatory, and the company soon earned everlasting enmity by filing lawsuits against folks who were unemployed, on public assistance or disabled. Righthaven, for example, sued cat-blogger Allegra Wong of Boston, who was unemployed and receiving “financial support from a companion.” Righthaven also sued Brian Hill of North Carolina. Hill is autistic and chronically ill and is supported by Social Security disability benefits. My attorney David Kerr successfully defended Hill, whose story was featured in the New York Times, “Enforcing Copyrights Online, for a Profit.”

After the Hill case, Righthaven seemed to come under withering fire from defendants who refused to settle with what many considered a bloodsucking copyright troll. In a series of cases out of Federal District Court in Nevada, defendants were able to show that Righthaven in fact failed to own the copyrights for the materials over which it was suing. The company had entered into a “strategic alliance agreement” with the Las Vegas Review-Journal, and in April, Roger Hunt, the Chief U.S. District Judge for Nevada, ordered the agreement unsealed in a case involving the Democratic Underground. In the following weeks and months Righthaven continued to suffer defeats at the hands of judges in Nevada, and then later in Denver as well, where soon enough Senior U.S. District Judge John Kane would start handing down a series of devastating defeats for Righthaven. Eventually the Denver court threw out 34 cases filed there alleging copyright violations (including mine), most likely all of them involving the TSA pat down photo. See: “Judge: Righthaven lacked standing, abused Copyright Act.”

That was about five weeks ago. Since then Righthaven’s been hit with judgments totaling several tens of thousands of dollars and it’s been unable to make good on the payments, instead asking for leniency and extensions from the courts. But time’s running out. The news out this week is that the District Court in Las Vegas has ordered U.S. Marshals to seize more than $63,000 in Righthaven assets. See: “Marshals ordered to seize Righthaven assets.” And see this report from Nate Anderson, at Ars Technica, “US Marshals turned loose to collect $63,720.80 from Righthaven”:
Looks like it’s time to turn out the lights on Righthaven. The US Marshal for the District of Nevada has just been authorized by a federal court to use “reasonable force” to seize $63,720.80 in cash and/or assets from the Las Vegas copyright troll after Righthaven failed to pay a court judgment from August 15.

Righthaven made a national name for itself by suing mostly small-time bloggers and forum posters over the occasional copied newspaper article, initially going so far as to demand that targeted websites turn over their domain names to Righthaven. The several hundred cases went septic on Righthaven, however, once it became clear that Righthaven didn’t own the copyrights over which it was suing. Righthaven, ailing, was soon buffeted by negative court decisions as a result.

In August, the case Righthaven v. Hoehn was tossed by a federal judge in Nevada, who went a step further and declared that defendant Wayne Hoehn’s complete copy of a newspaper article in a sub-forum on the site “Madjack Sports” was fair use. On August 15, the judge awarded $34,045.50 to the Randazza Legal Group, which represented Hoehn. Righthaven, which had spent so much time thundering to defendants about just how badly the federal courts would make them pay... didn’t pay.

Instead, it filed a flurry of appeals alleging (among other things) that having to pay the money would involve “the very real threat of being forced out of business or being forced to seek protection through bankruptcy.” Righthaven contended that it could eventually win the case on appeal and thus should not be bankrupted before it had the chance to make its case.

But the increasingly disorganized organization couldn’t even get its appellate filings in on time. Yesterday, Righthaven had to admit that it missed the October 31 deadline for its opening brief in the case. It blamed the problem on a “misunderstanding,” then noted it would need a few more weeks to actually write the brief, since “Righthaven’s counsel is scheduled to undergo a surgical procedure for which it is estimated that he will be recovering outside of the office for approximately one week.”

Randazza shot back that Righthaven was “prolonging the appellate process by deliberately creating a manufactured deadline crisis. It is nobody’s fault but Righthaven’s that it cannot file a single opening brief with this Court within the original briefing schedules Righthaven knew of, and could have reviewed at any time.” All the while, Randazza Legal Group was ringing up more fees with every brief it wrote.

The appeals court has refused to act on Righthaven’s request to delay its August judgment further, and the money was due last Friday. When it didn’t show up, Randazza Legal Group went back to the Nevada District Court to request a Writ of Execution to use the court’s enforcers, the US Marshals, to collect the money. The court clerk issued the writ today, and Righthaven’s $34,045.50 judgment has now ballooned to $63,720.80 with all the additional costs and fees from the delay.
There’s still more at the link.

I can’t say I haven’t learned a lot through all of this, although involuntary education isn’t my style.

And I want to again thank my attorney David Kerr for being a super stand-up guy and wise counsel. I reached out to a number of law offices in the beginning. It was going to be expensive and I didn’t know if I’d be able to afford a defense. David took an interest in my case and my blog and ended up helping me file the defense. That was cool.