Blogger asks to pay $200 to close R-J copyright suit

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One of the bloggers being sued for posting a Las Vegas Review-Journal story online without authorization is asking that the copyright infringement lawsuit against him be closed and that he pay minimal damages of $200.

Kevin Kelleher in Apex, N.C., near Raleigh, who operates a blog about public address announcers, was sued last month in U.S. District Court in Las Vegas by Righthaven LLC, which detects infringements of Review-Journal stories, obtains copyrights to those stories from the Review-Journal's owner and then sues the alleged infringers on a retroactive basis.

Through Wednesday, 100 Righthaven suits had been filed in that court since March against defendants throughout North America, with Righthaven typically demanding $75,000 in damages and forfeiture of the defendants' website domain name.

Kelleher was accused of posting on the site a Review-Journal story about UNLV announcer Dick Calvert being named to the Southern Nevada Sports Hall of Fame. That post credited the Review-Journal, records show.

Kelleher said in his response he's representing himself without an attorney.

He wrote in the filing that the story was posted "with the belief that such display was protected under the fair use" provision in the copyright law.

"Defendant was not aware that his blog, a passive, noncommercial information/news portal, would be subject to a lawsuit given the fact that the origin and writer credit were displayed," Kelleher wrote.

Kelleher added that immediately after he learned of the lawsuit from the Las Vegas Sun, he removed the story in question.

Most Righthaven defendants say they were sued without warning, or any notice from the Review-Journal or Righthaven that there was a concern about their posting of Review-Journal material. Many of the defendants learn of the lawsuits from the Las Vegas Sun, which finds them during routine court checks before the defendants are served.

Saying his site typically averages less than 10 visits per day, and it carries no advertising, Kelleher disputed Righthaven's claim that the alleged copyright infringement caused it "irreparable harm."

Kelleher was referring to boilerplate language in the Righthaven lawsuit saying: "Mr. Kelleher’s acts as alleged herein, and the ongoing direct results of those acts, have caused and will continue to cause irreparable harm to Righthaven in an amount Righthaven cannot ascertain, leaving Righthaven with no adequate remedy at law."

Kelleher called that "specious in nature and not worthy of the court's time and trouble."

"Defendant asserts that plaintiff's inability to ascertain what exactly 'irreparable harm' is, and what it constitutes, is merely a 'fishing expedition' with a protracted 'what if' scenario," Kelleher wrote.

Kelleher wrote in his filing he "stipulates that judgment be had in plaintiff's favor against defendant for non-willful copyright infringement of the single article at issue ... and that plaintiff be awarded $200 in statutory damages."

Kelleher cited a provision in the copyright law saying "In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

Righthaven has not yet responded to Kelleher's filing. If Kelleher's "stipulation" is accepted by the court, the case would be a money loser for Righthaven since Righthaven pays $350 in court filing fees per suit and $35 to register each copyright, or $795 to register copyrights on an expedited basis.

Righthaven hasn't disclosed how much money it pays the Review-Journal's owner, Stephens Media LLC, for copyrights and whether Stephens Media shares in lawsuit revenue, though defense attorneys may explore those issues through discovery and depositions as the contested cases move forward.

Another defendant, in the meantime, has created a website to fight Righthaven and to seek donations through Paypal and for his defense costs.

That site,, says supporters are needed to: "Help preserve the free exchange of information and opinion on the Internet" and to "help fight the Righthaven lawsuit mill."

That site was created by defendant Fred Pruitt, who has a blog called covering terrorism, international relations, government and politics. Pruitt was sued Aug. 9 after a message board user, "Beavis," allegedly posted on the rantburg site a July 9 Review-Journal editorial about President Obama visiting Las Vegas called "Welcome back, Mr. President. Your economic policies suck."

Pruitt wrote on his site the lawsuit was filed "despite active steps I and the moderators have taken to prevent anything emanating from the Las Vegas Review-Journal being posted here."

"If you think Rantburg performs an important service to the blogosphere please kick in to the defense fund and have your friends kick in as well. I'm not a lawyer and I don't have an awful lot of money to spend on lawyers. What's in Paypal at the moment is enough for the next three or four months of (website) hosting," Pruitt wrote on his blog.

"I always hate to ask for money. I don't run the Burg to make a profit. I especially hate to ask for contributions for such a stupid reason. But you can't ignore malevolence. If you do it'll eat you up, in this case to the tune of more thousands of dollars than I have," he wrote.

Yet another group of Righthaven critics is promoting a boycott of the Review-Journal and its sister newspapers in the Stephens Media group. They're boycotting with a plug-in they say works with the Firefox web browser and that blocks access to Stephens Media newspaper websites.

Stephen E. Wright, a writer in Denver, discussed the boycott effort in a post called "An online boycott of a vengeful, weasel media group (aka Stephens Media)."

"Righthaven is a predator group picking on the little guys who don’t have huge legal resources," Wright wrote, pointing to a Righthaven lawsuit that caused the operators of the Idaho-based website to remove all news from the site.

"As an author I’m not against any group defending their work, but there is such a thing as accepted use for legitimate commentary AND there is an etiquette for dealing with someone whom you believe has used too much of your content that respects the rights of others to do commentary. Before you sue you contact the entity you have a problem with and ask for the content to be taken down," Wright wrote on his website.

Other web and blogsites that have been critical recently of Righthaven include and

The Review-Journal and Righthaven, however, say the lawsuits are necessary to stop the online theft of R-J material and to generally protect the newspaper industry from online infringement. Review-Journal Publisher Sherman Frederick explained the suits in his blog.

Righthaven, in the meantime, is asking a federal judge in Las Vegas to impose sanctions against one of the defendants that it says has failed to amend its legal response to comply with Righthaven's view of the copyright law.

In a filing against the Dr. Shezad Malik Law Firm P.C. in Texas, Righthaven attorneys argued they have shown the copyrights they obtain from Stephens Media give them the right to sue for past infringements, and that attorneys in three other cases have conceded this point, yet Malik Law firm has refused to stop arguing Righthaven lacks standing to sue for past infringements.

"Malik Firm's grossly premature and unfounded assertion that Righthaven lacks standing to sue for copyright infringement is fundamentally frivolous, entirely unsupported by law or fact and gives rise to the imposition of sanctions pursuant to the Federal Rules of Civil Procedure," Righthaven argued in a filing this week. "Malik Firm's standing argument, and the erroneous citation of law purportedly in support thereof, was asserted without any reasonable prefiling inquiry as required ... and represents nothing more than a flagrant and egregious attempt to mislead the court. Ultimately, Malik Firm's conduct constitutes an abuse of the litigation process and should not be tolerated."

Among the Righthaven cases, the Malik lawsuit is among those where it appeared entire Review-Journal stories were posted without authorization and without any credit for the information given to the Review-Journal. Those stories were posted at the Dallas-Fort Worth Injury Lawyer Blog published by doctor-lawyer Dr. Shezad Malik's firm in Southlake, Texas, court records show.

The Malik firm, in court papers, has denied the copyright infringement allegations, also arguing the Nevada court lacks jurisdiction over the Texas firm and that it is entitled to the Digital Millennium Copyright Act’s "safe harbor" protection because it had "insufficient notice, under the DMCA, of the particular infringements in suit."

The DMCA safe harbor provision typically covers third-party message board postings on websites. In this case, Righthaven argues it was Dr. Malik himself who posted the stories.

Righthaven also insists the Nevada court has jurisdiction since the 9th U.S. Circuit Court of Appeals has found "willful copyright infringers who reproduce content from a source known to exist in the forum purposefully avail themselves of said forum."

The Malik firm has not yet responded to the motion for sanctions.