Judge strikes Righthaven website domain demand

Things went from bad to worse on Friday for Las Vegas copyright enforcement company Righthaven LLC when a judge rejected Righthaven’s standard copyright infringement lawsuit demand that defendants forfeit their website domain names to Righthaven.

Chief U.S. District Judge for Nevada Roger Hunt also found merit in arguments that Righthaven can’t demand attorney’s fees in its lawsuits, though he didn’t issue a final ruling on that issue.

Hunt’s ruling on those two issues came in a Righthaven lawsuit against former federal prosecutor Thomas DiBiase, who has a website covering “no body” murder investigations nationwide — cases in which a murder is suspected but no body has been located.

He was sued by Righthaven after posting without authorization a Las Vegas Review-Journal story about such a case on his website nobodycases.com.

In motions for dismissal and a counterclaim against Righthaven, attorneys for DiBiase argued the federal Copyright Act contains no provision for domain name seizures in copyright lawsuits.

Critics say this standard demand by Righthaven, along with threats of statutory damages of up to $150,000, are included in the lawsuits to coerce defendants into settling — with most defendants settling for less than five figures and keeping their website names after learning that’s cheaper than hiring attorneys to fight back.

Righthaven agreed domain name transfers are not authorized by the Copyright Act, but argued such seizures are appropriate as a matter of equity — for instance, if a defendant won’t stop infringing or can’t pay a judgment.

Hunt sided with DiBiase on that issue on Friday, citing case law that the remedies for infringements are only those prescribed by Congress.

“Congress has never expressly granted plaintiffs in copyright infringement cases the right to seize control over the defendant’s website domain. Therefore, the court finds that Righthaven’s request for such relief fails as a matter of law and is dismissed,” Hunt wrote in his ruling.

DiBiase’s attorneys with the Electronic Frontier Foundation, an online freedom group, also argued Righthaven’s request for attorney’s fees — should it win the case — be dismissed because that would require there be an independent attorney-client relationship.

DiBiase argued Righthaven’s principals are its lawyers, so there is no independent relationship with a client.

“Although the court finds merit in DiBiase’s argument, it nevertheless denies his motion because any determination on attorney’s fees at this point in the litigation is simply premature,” Hunt wrote.

Righthaven also sought dismissal of DiBiase’s counterclaim in which DiBiase sought a declaration by the court that DiBiase did not infringe on Righthaven’s copyright.

Hunt refused to dismiss the counterclaim, writing that it “serves a useful purpose because, among other things, it will guide DiBiase’s website operations (and the operations of other, similarly situated parties) in the future.”

With Righthaven losing two fair-use rulings so far, DiBiase will continue to argue his post was protected by that concept.

Hunt also found that “DiBiase has pled sufficient facts to make his request for declaratory relief a plausible claim.”

Friday’s ruling means the litigation will continue, unless it’s settled.

Also Friday, Hunt made public the Strategic Alliance Agreement between Stephens Media LLC, owner of the Review-Journal, and Righthaven. This contract covers the copyright assignments that are at the heart of Righthaven’s lawsuits over Review-Journal material.

A defense attorney familiar with Righthaven said the document could be devastating to Righthaven and Stephens Media, an affiliate of which has invested in Righthaven.

That’s because the document shows Righthaven’s interest in the copyrights is only for the right to sue, with Stephens Media retaining all other rights.

This appears to contradict Righthaven’s typical lawsuit claim that Righthaven “holds the exclusive right” to reproduce the material at issue, prepare derivative rights to it, distribute copies of it and publicly display it.

The attorney, who agreed to provide information to the Las Vegas Sun and VEGAS INC on the condition he not be identified, offered this analysis of Hunt’s ruling.

“Righthaven has always asserted that it’s the unquestioned owner of all copyrights. This agreement suggests that’s not exactly accurate. In fact, Righthaven is ‘assigned’ particular copyrights really just to sue someone. Essentially all meaningful rights under a copyright are by this agreement expressly given right back to Stephens Media.

“In fact, Stephens Media can cancel the ‘assignment’ and get back the entire copyright anytime it wants. Bottom line: this ‘assignment’ is legal doublespeak and Righthaven really doesn’t own anything.

“It may be making false assertions to the court and defendants by saying it’s the actual ‘copyright owner.’ It will be interesting to see if Righthaven defendants, including those who already settled cases, now try to raise claims of misrepresentation against Righthaven, arguing that the company really didn’t own copyrights as it asserted,” the attorney said.

Righthaven, however, has said its copyright assignments are valid for lawsuit purposes and arguments otherwise “would completely eviscerate countless years of licensing and related transactions throughout the country.”

“There is simply no basis to conclude the ‘newly discovered evidence’ demonstrates the objective unreasonableness of Righthaven’s claims,” said a filing in March by Righthaven attorney Shawn Mangano.

The unsealing of the document is just one step in the litigation of a lawsuit Righthaven filed against the Democratic Underground over a partial post of a Las Vegas Review-Journal story.

The Democratic Underground is pursing a counterclaim against Righthaven and Stephens Media, complaining they created “sham” copyright assignments.

The Democratic Underground in particular wants to be awarded its legal fees, which are likely to be hefty given the amount of work devoted to the case.

Hunt, in resolving a dispute between attorneys over whether the contract should be made public, included some harsh commentary in his order about the attorneys for Righthaven and Stephens Media.

Hunt cited their use of phrases against Democratic Underground attorneys such as “underhanded” “a ruse,” “blatantly ignored,” “brazen attempt,” “fumbling attempt,” “purposefully muddle” and “defendants’ complaint reeks of hypocrisy.”

Hunt called all of that “a very unprofessional attempt to attack counsel rather than address the issues.”

“There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here,” Hunt wrote.

Hunt wrote in his order he initially was inclined to keep the copyright-assignment contract secret but said Righthaven and Stephens Media cited only “feeble” reasons to keep it hidden from public view.

These included concerns Righthaven competitors would get a look at the information, that its release would harm Righthaven's ability to sign up new clients and that ``dissemination of the information would be published by Stephens Media competitor the Las Vegas Sun newspaper and would be disseminated widely throughout the Internet.''

"It appears to the court that there is certainly an interest and even a right in all the other defendants sued by plaintiff to have access to this material. Furthermore, because these cases have generated a great deal of public interest, particularly in the media and on the Internet, that there is a right of the public to this information which overrides any claimed confidential commercial rights,'' Hunt wrote in his order.

"The Las Vegas Sun and the Internet have already widely disseminated articles about Righthaven’s numerous lawsuits in this district and also the various favorable and adverse rulings that have been rendered,'' Hunt wrote. "This substantiates the public interest in this matter and this information, which has been generated by Righthaven and Stephens Media’s own actions.

"The right of other defendants in Righthaven’s lawsuits, and of the public to understand the full facts regarding the bases for Righthaven and Stephens Media’s actions, outweighs the feeble concerns noted above,'' Hunt's order said.



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Discussion 11 comments

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  1. sociopath - noun Psychiatry .
    a person, as a psychopathic personality, whose behavior is antisocial and who lacks a sense of moral responsibility or social conscience.

    It's been a nice ride Gibson but you've worn out your welcome in Las Vegas, just like you did in Chicago. We won't shed a tear when you leave. Take your little henchpersons with you.

  2. Thanks for printing the Strategic Alliance Agreement between the Stephens Media and Righthaven. Things are even worse for Righthaven, its' counsel, and for Stephens Media than could be imagined.

  3. Thank you, Judge Hunt. Next step, put the vulture outfit out of business! Make it pay the court costs and attoney fees for those it has wantonly sued with only averice in mind. The R/J should be ashamed of itself for aligning with such a low-class outfit!

  4. You better believe there is a lot of sweating going on in the board rooms of RIghthaven, Stevens Media, and News Media Group. They are now dying the death a thousand cuts. Righthaven better stop filing new lawsuits because they are about to get very busy fighting counter-claims, class-action suits, challenges to existing settlements and even though their agreement with Stevens Media stipulates that Stevens Media will be held harmless in lawsuits this will not shield them from the barrage of lawsuits that are coming their way.

    This is now unraveled. RIghthaven is finished. It will be great entertainment for now on to see further devistating rulings against them. Righthaven's rein of terror is over.

    Rock you need to come clean and admit you were wrong about Righthaven. Even though fighting copyright infringment may be morally justified the way Stevens Media and Righthaven went about it cannot be morally justified. You call down-loaders thieves but then you supported an organization that became thieves themselves and sought to use the levers of justice to do it which makes them far worse than any petter copyright infringers. There is absolutely no moral or ethical justification for what Righthaven has done and now they and their co-conspirators are about to pay a huge price for it.

  5. Righthaven's business model does not allow for all of their now incurred defense costs.

    This was supposed to be a down and dirty operation and all those sued where supposed to settle and move on.

    These costs will kill them in the long run since they are not collecting enough in what small settlements they are receiving to cover costs.

    Righthaven will go away soon.

  6. If I owned stock in Stevens Media or News Media Group I would be selling it off right now because its worth is about to plummet.

  7. If Righthaven and its attorney are one and the same as implied by Judge Hunt, it may violate the Nevada Rules of Professional Responsibility, to-wit:

    (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
    (1) Acquire a lien authorized by law to secure the lawyer's fee or expenses; and
    (2) Contract with a client for a reasonable contingent fee in a civil case.

    NV ST RPC Rule 1.8

  8. Righthaven and Stevens Media's scheme is so unethical so against both the spirit and the letter of copyright law as well as case law and common law that Righthaven must have been extremely confident in their ability to extract settlements that none of the cases would ever see a court room.

    This assignment agreement is so damning to Righthaven and Stevens media they would be insane if they filed one more lawsuit under it. Every case is now a potential mill stone around their necks.

    All Righthaven suits past and present may now be a huge money maker for all enterprising lawyers. There may soon be a cottage industry of lawyers set up just to take Righthaven victims as clients.

    There's Righthaven, Stevens Media, and Media News Group money to had. It is time for them to be pillaged and plundered for their dastardly deeds!

  9. While many of these comments are interesting, we're still in a "wait and see" mode for the first full litigation. As to Steve Green, he's followed this story assiduously and in many respects, profoundly. I would hope that this fine reporter somewhere down the line gets recognized either with a Pulitzer nomination or a Loeb. It seems to me there's far too much "opinion" on the matter itself, yet few kudos for the reporter. I've been there on long-term stories as a reporter and it's tough to come up with a new lede regularly.

    Don't take this the wrong way, but WoodStein had to come up with that daily; of course, on many stories, for you who are old enough to have actually read them, had that new lede and then background.

    To Steve Green: Keep it up. There's light at the end of this tunnel and your stories are as tight as....well, I don't think I can write that, so suffice it to say, never anything less than compelling. Thank you.

  10. Chunky says:

    Finally, someone revealing Righthaven for what they are; as if most of us didn't know already.

    Hopefully all the previous defendants and courts can go after Righthaven and Stevens Media for fraudulently representing their interests / ownership in the copyright.

    That's what Chunky thinks!

  11. As a commenter posted on another board and is worth repeating from the movie, "A Few Good Men" regarding Righthaven's refiled dismissal motion to Judge Kane:

    Lt. Weinberg: "I strenuously object?" Is that how it works? Hm? "Objection." "Overruled." "Oh, no, no, no. No, I STRENUOUSLY object." "Oh. Well, if you strenuously object then I should take some time to reconsider."