Tag Archives: Righthaven

Suing bloggers for dollars

Originally posted 2011-12-05 10:40:50. Republished by Blog Post Promoter

Interior of rotunda, New York Supreme Court, New York CountyGlenn Reynolds links to a an article in Wired about a newspaper “chain”‘s — actually, lawyer Steve Gibson’s — “new business model”:  Suing bloggers who post newspaper articles, evidently more or less intact ones, on their sites.  Glenn says suing bloggers “seems like a poor business plan” — mainly, of course, because most bloggers are broke, or pretty close to it.

The article also explains why these one-off claims by outfits such as the Las Vegas Review-Journal are unlikely, in the long run, to pay off.  One reason is that at least the music industry, through the Recording Industry Association of America, is theoretically going for some degree of bulk in its litigation trawling against unlawful file sharing.  And we did say “theoretically”:  Remember, in 2008 the RIAA managed to spend about $16 million on legal fees to reel in a whopping $391,000.  As the article says, “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

So, yes, it is hard to comprehend the return on investment here.

There are other reasons this doesn’t seem to make sense.  “Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages,” says the article.  But no, not quite on the “whopping damages” stuff.  Contrary to myth — and to the threats routinely uttered by copyright plaintiff attorneys — statutory damages are not meant to be a windfall, as I explain at some length here.  Now it is true that some juries think intellectual property infringement damages are a jackpot unrelated to actual harm — usually because judges don’t instruct them properly.  But other judges in high profile cases are refusing to be part of the copyright shakedown.  Thus in the recent Tannenbaum copyright case, the District Judge reduced the jury’s damages award of $675,000 for infringement of 30 songs to $67,500, ruling that the amount awarded was unconstitutional under the Due Process clause.

Still, $67,500 is a lot of money, a lot, and still pretty darned distant from any plausible quantum of loss to the copyright owner.   Read More…

There’s no haven like Righthaven

Originally posted 2012-07-01 01:19:00. Republished by Blog Post Promoter

PayOn June 7th I will be on a panel discussing the Righthaven litigation and the concept of “mass copyright infringement campaigns” — they weren’t, after all invented by Righthaven — at the annual meeting of the Copyright Society of the U.S.A along with Steven Gibson of Righthaven in Bolten’s Landing, New York.  Our talk will be moderated by Stacey L. Dogan of Boston University School of Law. I first blogged about Righthaven and Gibson here, not necessarily saying what you’d think I’d say.  I subsequently got involved in one Righthaven case, on behalf of the Media Blogger’s Association, at the urging of Marc Randazza and in connection with a favorite topic of mine:  The misuse of statutory copyright damages.

Should be some fun!

UPDATE:  Our brief out in Nevada is noticed by a newspaper from around here.

Righthaven Agonistes

Rainbow over Lake George

Is all this copyright jurisprudence lollipops and rainbows?

Let us reflect a little on what Righthaven has wrought, so far.  Wired weighs in on the latest Righthaven woes:

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Not really a big surprise.  One of the points I made at this month’s CSUSA panel on this topic was that when you push too hard on enforcement, someone who matters — either legislators, judges or rampaging mobs — will punish you and leave in a place that is outside what you thought defined the range of outcomes.  In a bad way.

Big IP never wants to hear this until it’s too late.  But there is a sort of rough justice in such an outcome, for it is the mirror-image, by alternative (i.e., judicial) means, of a legislative scheme that says, as the Copyright Act does, “Don’t think your damages are limited to what you would have had to pay if you had not infringed.  There is a big penalty, via attorneys’ fees and statutory damages, for doing it this way.  Cross at the green, not in-between.”  I have argued for some time that the one-sidedness of this equation, which does not account for the welfare detriment caused by abusive and overreaching litigation, is unsustainable.  I have expressed hope for a legislative improvement in copyright policy, though, not a judicial one.  That hope may be vain — and now it may be the exact opposite of what happens.

Was it a foreseeable risk that judges might blow past traditional bounds of fair use to make a point in a situation such as this?  There will be plenty of analysis on the question, as there ought to be, considering the following excerpts from the opinion (the link to which Randazza emailed me during the bleary-eyed hours last night).  Just working off the Wired article, here are some … interesting concepts.

One of them is that the court found a lack of standing, yet went ahead and ruled on the fair use issue anyway, writing, “Assuming Righthaven was found to have standing to bring this action, the Court nonetheless finds Hoehn is entitled to summary judgment on the ground of fair use of the Work.” That is rather unusual, and arguably resulted in a holding that is dictum.  It could also be described as an alternative ground for dismissing the complaint, of course, but, again, the court went the extra mile to make not only a point about fair use, but an arguably controversial one.

Moreover, the finding of fair use was based here on (a) a holding that the use was non-commercial, which (b) militated against applying the traditional rule that copying an entire work is prima facie infringement, or at least that the use of the work has a strong presumption against fair use in light of (c) the fact that there was no cognizable impairment of the economic value of the copyright.  The court makes this seem quite straightforward.  This factor certainly is, as the Media Bloggers Association brief filed in another Righthaven case in Nevada argues, certainly a significant one in the fair use analysis (which we could not urge in full, because the procedural posture was one of default judgment) and must be considered with respect to awarding damages, including statutory damages.  Fine, as far as it goes.

But every pendulum has its amplitude, and then it swings back. Read More…


Sagamore Hotel - Lake George, NY - Copyright Society Annual Meeting

Sunset for Righthaven?

Clayton Cramer, via Insty, report on an unsurprising, but still dramatic, development in the Righthaven saga, which I tweeted about last night:

From the ever useful Steve Green at Vegas Inc.:

A federal judge in Las Vegas today issued a potentially-devastating ruling against copyright enforcer Righthaven LLC, finding it doesn’t have standing to sue over Las Vegas Review-Journal stories, that it has misled the court and threatening to impose sanctions against Righthaven.

Judge Hunt did not just dismiss Righthaven’s suit; he gave them two weeks to respond as to why they should not be sanctioned by the court and held liable for the legal fees of Democratic Underground.  My hope is that once this is settled, there will be a massive dogpile of all the people that were intimidated into settling out of court with Righthaven, and the net effect will be both immediate bankruptcy for Righthaven, and perhaps the destruction of Stephens Media as well.

Yes, and ouch, that would leave a mark. (UPDATE:  Here’s the order.)

Now, based on everything Steve Gibson from Righthaven has said, including at this event we did together last week, Righthaven is, also at this point, not surprised and is “looking forward” to appellate review.  That’s not only reasonable, that’s just about all Righthaven can look forward to at this point, at least in Nevada.

Because I, on behalf of the Media Bloggers Association, still have stuff pending in the related cases, I am not inclined to say a lot more.  For now.

Well, okay, I will say this rather neutral thing:  If the circuit court really writes something about this case, it’s going to be a big deal.  Win, lose or draw.


We wouldn’t that happening to you or to me.  So this week, while I am guest-blogging at Overlawyered, I will probably not have all that much to say that’s new over here.

I can, however, recommend some fine, very recent Overlawyered posts that are topical to this blog.  These two are by me:

  • Paulie Unsaturated:  About the silly trademark lawsuit between one Paulie and another Paulie.  One of them is on a TV show.  The New York Post, meanwhile, is utterly confused by the whole intellectual property concept.  Or concepts. Hilarity ensues.
  • Assigned Counsel:  The latest revolting developments in the Righthaven lawsuits.
These two aren’t by me, but should have been LIKELIHOOD OF CONFUSION® posts themselves, and perhaps someday they will be:Edison's first phonograph
  • Vintage Sound Recordings:  Many such finds are lost in a copyright maze, applying American copyright rules that “infuriate scholars, archivists, musicians and the conservationists who preserve fragile recordings. They fret that by the time the recordings become available, many will be beyond salvation.”
  • Annals of Criminalization: “The Senate Judiciary Committee has unanimously approved S. 978, a bill that would raise from a misdemeanor to a felony the unauthorized performance or streaming of a copyrighted work when the infringement takes place at least ten times and either reaps $2,500 or more in revenue, or avoids the payment of license fees whose fair market value would exceed $5,000.”  Walter links to two dissenting opinions about whether this is such a bad thing or not.

Best of 2011: What “beating Righthaven” means

First posted November 3, 2011.

Supreme Court and U.S. District CourtInstapundit links to Donald Douglas’s blog post, Beating Righthaven.  Excerpt:

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). . . .

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.”

There’s a lot that’s “frightening as hell” going on out there with IP “enforcement” — a word I didn’t put quotes around when I used to do it for Brands You Must Know, because the kind I used to do didn’t need them.  It was legitimate, based on easy to comprehend ownership rights, consumer protection concerns and, yes, a concept of fair warning even to a lot of defendants who didn’t deserve it all.

Now IP is a racket.  Most of the readers of this blog practice IP law, and know exactly what I mean — because of what they do and, well, because they read this blog, and have surely detected a turn in my attitude toward the topic from years past.

Practical lawyering in an area of law I actually like often disgusts me now.

Look, I “majored” (not really how they designate this where I went to school, but stick with me) in economics — focusing my learning not in money or finance, which I know little about, but the prediction of human behavior when incentives are provided, withdrawn or distorted.  And I “minored” in political science.

So I was not born yesterday.  I have always understood that much of what is happening in IP law is entirely predictable once we understand that the value of the estates in intellectual property has skyrocketed, for any number of reasons, unpredictably.  But from that premise, it is not news that the incentive to capture rent — get as much of the action as possible — will rise concomitantly, leading to a rational increase of investment by stakeholders in making changes in the regime governing the allocation of such rights.   Read More…

Righthaven – Media Bloggers Association files amicus brief

I’ve written a little bit about the Righthaven lawsuits before.  Now, as reported in the Las Vegas Sun, on behalf of the Media Bloggers Association I’ve helped write something that could matter, namely this amicus brief, the laboring oar of which was manned by Marc Randazza and J. Malcolm DeVoy out of Randazza’s shop:

The focus is on the propriety and scope of copyright statutory damages in the situation.

UPDATE:  They opposed; we replied.

Zombies in Las Vegas?

Ryan Gile reports on an odd ruling that just could — however unlikely — result in some degree of reanimation of Righthaven, of all things:

Back in 2009 (when I had much more time to blog on a more regular basis), I wrote about the three separate trademark infringement lawsuits filed by Stephens Media LLC (“Stephens Media”), the owner of the Las Vegas newspaper The Las Vegas Review Journal [and the engine behind Righthaven], against three separate companies over their alleged use of the term “BEST OF LAS VEGAS.”   See previous blog entry here.
In the case against one of the companies, CitiHealth LLC (“CitiHealth”), on August 6, 2012, U.S. District Court Judge Miranda Du issued a decision on a motion for default judgment filed by Stephens Media.  SeeStephens Media LLC v. CitiHealth LLC, 2012 U.S. Dist. LEXIS 109431 (D. Nev. August 6, 2012).  What is interesting is how long it took for the case to get to this point.
And that interesting part, of course, Ryan explains, and you should read it.  But his punchline is interesting, and self-standing, in its own right:
In the end, the Court entered a default judgment  awarding $200,000 against CitiHealth as well as a permanent injunction against CitiHealth and its officers against any further use of the “Best of Las Vegas” mark.  The Court also gave Stephens Media 30 days to file a motion for attorneys fees.
While its highly unlikely that Stephens Media will be able to collect on its $200,000 default judgment, one wonders if Stephens Media, should it be able to collect such funds, would be willing to pump that money into back into Righthaven LLC so that Righthaven can pay the money that it owes to its creditors (including multiple defendants that the Nevada District Court found were wrongly sued by Righthaven for copyright infringement).   That’s probably even more highly unlikely.
Yes the odds are mightly slim. And who’d know better than a Las Vegas Trademark Attorney?

Who are you to sue?

Supreme Court, Appellate Division - BrooklynWhat’s the difference between standing — the right to seek judicial redress for an alleged wrong — in copyright and patent?

Who else, besides someone litigating the matter, but Pamela Chestak would ask that question, and understand how to answer it:

I’m curious about the different legal standards that the courts apply in patent versus copyright cases when deciding whether a plaintiff who acquired the rights through transfer has standing. Patent law seems draconian, as exemplified byAbraxis Bioscience, Inc. v. Navinta, LLC.

In Abraxis (blogged here and here), standing for a patent infringement suit was foiled by a complex transfer that would have been perfectly fine under New York law, the choice of law for the transaction, but that wasn’t under the law of the Federal Circuit. Even an assignment to a corporate family member, perhaps carefully worded for tax purposes, can deprive a party of standing for patent infringement, like here and here. Often there are attempts to fix the problem with confirmatory assignments, but often the effort fails.

Compare this to copyright cases. Twice in the past few weeks I’ve seen a statement like this, which I find somewhat remarkable: “When the parties to an assignment have no dispute over the transfer, third-party infringers lack standing to invoke Section 204’s writing requirement to avoid suit.” Malibu Media, LLC v. DoesNo. 12-2078 (E.D. Pa. Jan. 3, 2013). . . .

I don’t really see any support in the statutory language for the different treatment between patent and copyright cases. We have “patentee” and “owner”–equivalent terms–as the only ones who may bring suit. Transfers have to be in writing in both cases. In both cases, the burden is on the plaintiff to prove ownership–which is the point that I think the copyright cases play fast and loose with. I mean seriously, a defendant doesn’t have standing to ask that the plaintiff be put to its proof that it owns the rights it is asserting? Personally, I think that’s a bit of crazy talk.

And we hate it when judges talk crazy.

But how about the Righthaven cases?  One of the big deals about the Righthaven decisions was that holding that Righthaven didn’t really have anything to sue for infringement over, or had merely, as Marc Randazza and I put it in one (relatively insignificant) Righthaven brief, obtained a “chose in action,” which the Copyright Act does not authorize.  In other words, Righthaven didn’t have standing to sue.

The Court ultimately agreed with this argument, Read More…

The making of a martyr?

Steal this work.

In July of 2011 I wrote about the case of Aron Swartz, arrested at the time for stealing more than 4 million articles from JSTOR, an online archive and journal distribution service.  I wasn’t too sympathetic, but admitted that I knew very little about the case. Everyone reading this knows by now that Swartz committed suicide at age 26 yesterday, January 12th.

I still don’t know much about the case, but I do know a lot more about how federal prosecutors operate, mainly, and I know a lot more about how we’ve reached a point where we have an Administration that has allowed U.S. law enforcement to become, to the extent it hasn’t already made it, a private enforcement agency for Big Content, or even just big anything — and how little the federal courts care about it, to the extent they aren’t all in.

I’m not a defender of Swartz’s actions still.  He did steal that stuff.  Information doesn’t “want to be free” — it’s stuff, and it wasn’t his to free.  I think he should have gotten in trouble.

But as Patterico’s Pontifications points out in an exclusive interview with Swartz’s lawyer, the government had — as it does — gone way, way over the top here.  A quote from the Swartzes:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Again, I’m not too impressed by “cherished principles” of stealing stuff.  It’s not “only information” — information is pretty much the most valuable stuff there is these days.

Okay, maybe not the stuff on JSTOR.  But that is certainly not the point.

Think of it this way:  On the one hand, as we saw in connection with Righthaven, we have judges getting fed up with parties suing defendants for preposterous damages on top of attorneys’ fees for stealing that kind of stuff — essentially worthless (financially speaking) copyright-protected material.  That’s reasonable, because suits like that are abusive, out of hand.  Intellectual property infringement is a tort.  Sometimes it’s a crime.  But it’s …

It’s just IP infringement.  And just as no one should lose his livelihood for reselling tanning lotion on the Internet or give up his home for downloading six songs illegally, no one should have to face the prospect of being caught in the maw of the relentless federal “justice” machine for the rest of his life just because he took a big bunch of information and “let it be free.”

Especially not that stuff.

Sorry, but while I’m not about to make a hero, or a martyr, out of Aron Swartz, I have no trouble saying that copyright is not worth anyone’s life.