First posted November 3, 2011.
Instapundit 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). 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.”
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. So, yeah, Hollywood and Big Fashion and other major players are going to drop major bucks on whatever is for sale — legal talent, lobbyists, legislators — to “protect their assets” and just keep stacking the deck legislatively in their favor.
(I’m not even getting into how that plays into patents, patent reform… not here, not now….)
Ten years ago, though, I was — with no pricks of conscience — personally walking through the corridors of the House and Senate with other members of an IACC task force to make damned sure that eBay would not be able to secure a legislative extension of Section 230 of the DMCA to trademark law, even as judges were beginning to toy with inventing just such an extension themselves. That seemed like the thing to worry about at that the time, and indeed I have never changed my views that eBay got away with murder, albeit less so now, by enabling and profiting from the sale of counterfeit merchandise, and that the Tiffany case was sloppy work. But.
We’ve got a bigger problem now. A few. But I will focus only on the copyright / Righthaven angle right here:
IP has become, as economics predicts, a commodity, and a monetized one. Read More…