Lawyers ask to participate in potentially pivotal copyright case

The attorneys most active in fighting Las Vegas copyright enforcement company Righthaven LLC now want to participate in a potentially pivotal case involving copyright infringement allegations against the Pahrump Life blog.

Attorneys representing Righthaven defendant the Democratic Underground and another group of attorneys representing the Media Bloggers Association asked U.S. District Judge James Mahan in Las Vegas on Friday for permission for the Democratic Underground and the bloggers group to participate as friends of the court in the Pahrump Life case.

They sought to participate by filing briefs and potentially appearing at Pahrump Life hearings.

The Pahrump Life case is important in the Righthaven litigation as Mahan — who has already ruled against Righthaven on fair use grounds in another case — is now threatening to find Righthaven doesn’t have standing to sue over content allegedly misappropriated from the Las Vegas Review-Journal.

Righthaven, meanwhile, has lined up a star attorney from New York to help defend its right to sue.

Based on past experience in the fair use decision, Mahan is likely to allow the Democratic Underground and the Media Bloggers Association to participate in the Pahrump Life case.

That would level the playing field as the main defendant there, Michael Scaccia, is a retired construction manager who has been representing himself against Righthaven. Scaccia was sued after a Review-Journal story about a private prison showed up on his website.

The Democratic Underground is represented by some of the top copyright attorneys in the West associated with the Electronic Frontier Foundation, which has been pounding away at Righthaven’s litigation campaign and convinced another judge to unseal Righthaven’s lawsuit contract with Review-Journal owner Stephens Media LLC.

Mahan’s review of that contract is what prompted him to declare Righthaven apparently doesn’t have standing to sue.

The Media Bloggers Association is represented by copyright experts with Randazza Legal Group in the West as well as New York copyright attorney Ron Coleman.

“The entire existence of (the bloggers’ group) is premised upon advancing grassroots media and citizen journalism through ‘blogging’ — the creation of one’s own media outlet through a web log, or ‘blog’ — and providing legal assistance to these bloggers. Since its inception in 2004, (the group) has defended dozens of bloggers in legal actions, and in 2008 helped develop the first-ever media liability insurance policy for bloggers,” said a filing Friday by the bloggers.

“In this case, defendants Michael and Maren Scaccia are not represented by any counsel and have proceeded pro se through Michael Scaccia thus far,” their filing said. “Therefore, the presence of non-party (bloggers) to answer the court’s questions on this novel, complex issue is particularly appropriate.”

Besides representing the bloggers as a friend of the court in another case involving defaulting defendant Bill Hyatt, Randazza Legal Group represents other Righthaven defendants and is fighting to have the cases against them dropped on fair use grounds and grounds that Righthaven lacks standing to sue.

Separately, after it was stung by two fair use defeats, Righthaven is being more selective in its latest batch of lawsuits.

Righthaven filed at least three more lawsuits Friday over Las Vegas Review-Journal material, lifting its lawsuit count since March 2010 to 274 over Review-Journal and Denver Post material. Friday’s suits were on top of six suits filed Thursday.

The latest to be sued were:

• John Kirk (johnjohnsaidit.com)

• Neil G. Brommell and Holly L. Brewer (tvclubhouse.com)

• Bob Sieber (atomicbobs.com)

Messages for comment were left with the latest defendants.

A look at the websites of the most recent defendants — and the infringements alleged in the lawsuits — shows most of the new defendants’ sites are supported by advertising.

And Righthaven is suing over alleged 100 percent infringements as opposed to partial posts.

Those two factors — a defendant’s nonprofit status and the partial post of a story — were cited by judges this year and last year in ruling their use of Review-Journal stories online without authorization was permitted by the fair use doctrine of copyright law.

The johnjohnsaidit.com site, for instance, is clearly advertiser supported.

That suit includes an exhibit indicating the “JJSaidIt Staff” posted an entire Review-Journal column on the site by Norm Clarke. Only by reading the fine print on the post could it be determined this came from the Review-Journal.

Of the sites named in Thursday’s lawsuits — subliminalselfhypnosis.com; lawmedconsultant.com; extremedui.net; affordable-hunting-trips.com, newsblaze.com and floridasteaks.com — all are advertiser-supported or sell products online such as a book about deer hunting, steaks and a subliminal stop-smoking MP3.

These are similar to Righthaven’s April 21 lawsuit against the alleged owner of lasvegasinfonewspaper.com, which was accused of posting entire Review-Journal stories on the advertiser-supported site.

One new defendant that appears to be a hobby site is TV ClubHouse, which lacks advertising except for TV ClubHouse t-shirts.

The site calls itself an online community for discussing just about anything, though it focuses on television, particularly reality television.

In that suit, Righthaven says Brommell owns the tvclubhouse.com website domain name and that Brewer, a registered user of the site, posted on a forum board an entire Review-Journal story about a “Survivor” reality show contestant introducing a new casino game at the Golden Nugget hotel-casino in Las Vegas.

Records show this post linked to the Review-Journal, but only through the fine print could someone deduce this was a story from the Review-Journal.

“Mr. Brommell knew, or reasonably should have known, that websites, such as (his) website, are and were the habitual subject of contributions by others of copyright-infringing content to the website,” Righthaven alleged in the lawsuit. “Mr. Brommell did not institute any proactive policy of precluding or attempting to preclude the contributions by others of copyright-infringing content to the website.”

Another new defendant, Sieber at atomicbobs.com, doesn’t appear to have advertising on his message-board site but does accept donations payable to Atomic Bob’s Enterprises in Nowata, Okla.

One thing that hasn’t changed with these new lawsuits is that, like most Righthaven lawsuits filed since March 2010, they’re of the no-warning variety.

Two of the defendants reached by the Las Vegas Sun and its sister publication, VEGAS INC, said an inquiry from the Sun was the first they had heard about any concern with their use of Review-Journal material and the lawsuits.

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  1. The Gibson strategy. Sell the client on the services, get involved in massive litigation and milk the client for money. I used to think the folks at the RJ had some intelligence but they seem to have the Gibson repeating rifle pointed squarely at their feet and firing constantly.

  2. I have a feeling by the end of all of this the "Hot shot" New York Lawyer is going to wish she never got involved and will pay an extremely high professional price for associating with such a shady outfit.

  3. the "hot shot" NY lawyer will laugh her way all the way to the bank ---- and I doubt she cares like Gibons and Stephens do. Those two are fighting for their lives now that their model has been blown to crap.

  4. Sounds like RH is getting a clue.

    The business model is still questionable from a technical standpoint, but if they are indeed being more selective in picking targets they might actually do some good for not only their "clients" but also for the Internet community as a whole by bringing the problem of copyright infringement to light.

    No doubt some bloggers don't care if they are infringing or not, and those should be held accountable. But others are confused and/or ignorant and need education, not sanctions.

    Even though the Internet today is several orders of magnitude larger, there is still a basic sense of fair play that is present among the majority of users. The more the community knows about what is right and what isn't, the more the community will help to enforce it. One has only to look back at the "Green card lottery" incident to see how that touched off an outrage that is still generating action today to try to curb improper use of the 'Net.

  5. You would think people would want to end a career on a high point, looks like Sherm is going down in history like a guy that sued over the last drop of juice in a sour lemon.

  6. Shermy calls himself a conservative but then wants an all powerful and repressive government via the courts enforcing his personal interests. That is not conservatism but big government liberalism.

  7. boftx

    I would agree with you if it was the RJ itself taking up these cases but since it is Righthaven doing the suing I don't know if they can win even the strongest of cases since their business model compromises every single case they file. I don't know why any sane company like Stephens Media would deal with a company that has so much baggage.

    Many of these new suits are cases where entire articles were published so if Righthaven loses any of them it could further damage copyrights for all other newspapers even more. If Righthaven isn't careful we could see the list grow for more than just non-profits that can legally reproduce entire articles.

  8. Ken,

    You're right that since it is RH filing the cases they are tainted at best. Hopefully judges will limit their rulings to that aspect instead of ruling on "fair use" as Mahan (wrongly) did in the OCI case.