Defendant in R-J copyright case fighting Righthaven lawsuit

A Texas process server is fighting back against a copyright infringement lawsuit filed by Las Vegas company Righthaven LLC, calling it predatory.

Billy Bob Wells in San Antonio, who has a website called www.texasprocessservers.blogspot.com, is a bounty hunter and a board member of the United States Professional Bail Bond Investigators Association.

He was sued Sept. 9 by Righthaven, which has an arrangement with the owner of the Las Vegas Review-Journal to sue over alleged online infringements of Review-Journal material.

Wells was accused in the lawsuit of posting without authorization an Aug. 10 Review-Journal story about Las Vegas process servers suspected of filing false court affidavits and a Review-Journal story from Feb. 10 about a process server arrested in a Las Vegas slaying.

"I have been forced to hire attorneys in San Antonio and Las Vegas to defend myself from a $75,000 lawsuit for posting a newspaper article of interest to process servers in Texas," Wells wrote Oct. 2 on his blog.

"Beware anyone who posts an article, even in its entirety and credit to the author, you can be sued! There are some vulture attorneys in Las Vegas trolling the Internet searching for anyone that might have used a newspaper article in or on a webpage or personal blog. Innocent as you might be, with no motive to hurt or defraud or break the law, you suddenly become victim to predatory lawyers looking to make a quick buck off the unsuspecting. My expense to date is $2,500," he wrote.

Wells' attorneys, in answering the lawsuit Monday, used defenses that are being pursued by several other defendants including:

-- Fair use.

-- "Champerty," or the lawsuit being related to an allegedly improper relationship between Stephens Media LLC, owner of the Review-Journal; and Righthaven. A Stephens Media entity has invested in Righthaven and Stephens Media provides copyrights to Righthaven upon which Righthaven bases its lawsuits, which since March totaled 144 through Monday.

-- "Implied license," arguing the Review-Journal encourages the online sharing of its news content. One of the Las Vegas federal judges handling Righthaven cases has ruled in another case this argument may have merit.

-- Due process. At least one federal judge in an unrelated copyright case has ruled excessive copyright damages may violate a defendant's rights to due process under the U.S. Constitution.

"Plaintiff’s claims are barred because the statutory damages sought are unconstitutionally excessive and disproportionate to any actual damages that may have been sustained in violation of the Due Process Clause," Wells' attorneys wrote in Monday's filing.

- Copyright misuse. "Among other things, plaintiff is not seeking to protect its copyright rights or stop infringing activity. Plaintiff seeks to obtain money in excess of the fair and reasonable value of the claimed infringement and obtain compensation for its needless and unreasonable expenditure of legal and filing fees," his attorneys wrote.

Wells is represented in the litigation by Las Vegas attorneys Mark Borghese and Ryan Gile of the law firm Weide & Miller Ltd.; as well as attorneys from the San Antonio firm Gunn, Lee & Cave P.C.

Righthaven hasn't responded to the filing, but it and the Review-Journal say the lawsuits are necessary to stop online infringement of Review-Journal material.

The Righthaven/Review-Journal lawsuits, typically filed without warning, are receiving a good deal of attention in media and legal circles because they're a departure from the usual newspaper industry practice of seeking to resolve copyright infringements out of court before resorting to litigation.

Righthaven separately disclosed in court papers Monday that it reached a confidential settlement with another defendant, Second Amendment Sisters Inc. and two women associated with the gun rights website.

Based in Lakeway, Texas, the nonprofit group says on its website: "Second Amendment Sisters Inc. is a women's advocacy group dedicated to preserving the basic human right of self-defense, as recognized by the Second Amendment. We believe in personal responsibility, education, and enforcement of laws against violent criminals."

The group was accused of displaying on its website a Review-Journal story from May 17 about a Las Vegas store clerk who died after being shot by a robber -- but managed to shoot and kill the robber before dying.

Perhaps Righthaven's best-known lawsuit, against U.S. Senate candidate Sharron Angle, remains active. Angle, who was endorsed by the Review-Journal on Sunday, has not yet filed court papers responding to the Sept. 3 suit.

Since Review-Journal officials typically refer to copyright infringers as thieves, the endorsement caused Righthaven watcher and Las Vegas freelance writer Steve Friess tocomment on his blog:

"Congrats, R-J, for proving just how seriously you take copyright theft. Copyrighting is so important that, as your top lawyer Mark Hinueber told a Society of Professional Journalists gathering, it is nearly fundamental to the very foundation of the American way of life. But, on the other hand, someone who steals from you? She ought to be a United States senator! Cognitive dissonance much?"