Union challenges Righthaven’s demand for legal fees in copyright suit

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A division of the Teamsters union has signaled it's not going to be railroaded into paying the legal fees of Las Vegas online copyright enforcement company Righthaven LLC.

The Cleveland-based Brotherhood of Locomotive Engineers and Trainmen, part of the International Brotherhood of Teamsters' railroad unit, was sued for copyright infringement Oct. 12 in federal court in Las Vegas by Righthaven.

That was after an entire Las Vegas Review-Journal story from July 25 was posted on the union's website, allegedly without authorization.

The online post fully credited the Review-Journal and its website. The newspaper story involved competing Las Vegas-Los Angeles train proposals.

Righthaven is the Review-Journal's copyright enforcement company that since March has sued at least 172 website operators and bloggers. Righthaven finds infringements and then obtains from Review-Journal owner Stephens Media LLC copyrights to the stories at issue, including the rights to sue for prior infringements.

In answering the lawsuit Nov. 18, attorneys for the locomotive engineers became at least the second set of attorneys to directly challenge Righthaven's demand for attorneys fees in its lawsuits.

The issue of attorneys fees in the copyright litigation campaign will likely grow larger as the cases proceed.

With many of its lawsuits being settled, none of the contested Righthaven cases has reached the point where a defendant has been found liable at trial or on a motion for summary judgment.

Attorneys fees and damage awards would come into play if Righthaven wins any of these contested cases and they'll also be an issue if Righthaven starts asking judges for financial judgments against defaulting defendants.

With defense attorneys calling the Righthaven lawsuits frivolous since they're generally filed without Righthaven or the Review-Journal beforehand sending a cease-and-desist letter, and Righthaven saying the suits are necessary to protect its copyrights, spirited legal debate is expected once these applications for legal fees are filed.

"Plaintiff’s prayer for relief asking the court to award attorneys’ fees fails to state a claim on which relief can be granted, because plaintiff is not represented by outside counsel, and because plaintiff made no prior demand on defendants to remove the article from the website, and defendants immediately removed said article upon learning of plaintiff’s objection thereto," said the engineers' court filing answering the Righthaven lawsuit.

In some Righthaven cases, outside attorney Shawn A. Mangano of Las Vegas has recently appeared to represent Righthaven. But as of Wednesday, Mangano wasn't representing Righthaven against the locomotive engineers.

In another case pitting Righthaven against former federal prosecutor Thomas DiBiase, attorneys for DiBiase with the Electronic Frontier Foundation (EFF) also asserted Righthaven has no right to seek attorney’s fees in its lawsuits, as the Supreme Court has held that statutory attorney’s fees are only available where there is an independent attorney-client relationship.

Righthaven is half owned by Las Vegas attorney Steven Gibson and half owned by an affiliate of Review-Journal owner Stephens Media.

"Righthaven is a made-for-litigation entity that was set up and is run by the very lawyers who are prosecuting cases on its behalf. Righthaven is not independent from its litigation attorneys, and therefore, it may not seek statutory attorney’s fees," the EFF attorneys said in an Oct. 29 filing.

In the DiBiase case, Mangano filed papers to represent Righthaven on Nov. 12, substituting for Gibson. A Righthaven court filing didn't indicate why Mangano replaced Gibson in the case.

Righthaven has not yet responded to the assertions about attorney's fees in either the locomotive engineers' case or the DiBiase case.

The train engineers' union's answer to Righthaven's lawsuit also offered defenses used by several other Righthaven defendants including:

• The Review-Journal provides "licenses," either express or implied, for the use of its material online since it encourages readers to share and save stories.

• Posting of the story on the union website was protected by the fair use doctrine.

• Righthaven's damages, if any, "are limited by defendants' innocent intent."

• The case involves a trivial matter and Righthaven is involved in "copyright misuse," comes to the suit with "unclean hands" and its claims are barred in whole or in part by "illegality." The doctrine of illegality suggests a contract is voidable if it violates public policy.

• Righthaven is engaging in "barratry" and "champerty," meaning the excessive incitement of litigation and having an improper lawsuit relationship with the Review-Journal and Stephens Media.

Righthaven in other cases has denied these allegations.

The locomotive engineers also took a shot at Righthaven's standard lawsuit demand that the defendant's website domain name be forfeited to Righthaven.

Righthaven has said website domain names are an asset that could be seized should a defendant fail to stop infringing or fail to pay a judgment. But several intellectual property attorneys have said there is no basis in U.S. copyright law for Righthaven to demand forfeiture of domain names in its lawsuits and some say this appears to be a threat Righthaven uses in settlement negotiations.

"Plaintiff’s prayer for relief asking the court to order the registrar of the domain name www.ble-t.org to lock that domain and transfer control of it to plaintiff fails to state a claim on which relief can be granted because it is not authorized by copyright law and would violate defendants’ First Amendment rights and other U.S. Constitutional rights," the engineers said in their answer to the lawsuit.

Righthaven has not yet responded to the engineer's answer to the lawsuit.

The engineers are represented in the litigation by Las Vegas attorney Andrew Kahn of the firm McCracken, Stemerman & Holsberry, who in Nevada regularly represents the Culinary Union in litigation and other matters.

Also representing the union is attorney Sarah T. Grossman-Swenson of McCracken, Stemerman & Holsberry.