Attorneys attack Review-Journal copyright suit arrangement

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First came "barratry" and now comes "champerty."

These are the little-known legal concepts that defense attorneys are increasingly using in hopes of undermining the copyright infringement lawsuit litigation unleashed in March over online Las Vegas Review-Journal stories.

The Review-Journal's copyright enforcement partner, Las Vegas company Righthaven LLC, has sued at least 136 website owners throughout North America over unauthorized postings of Review-Journal material on their sites.

Court records show that in some cases, the material was posted by webmasters and in other cases it was posted by third-party message-board and forum users.

Generally all or substantial portions of stories were posted, though in a notable case against the political site the Democratic Underground, Righthaven sued after four paragraphs of a 34-paragraph story were posted.

With some exceptions, the Review-Journal was credited for the material and many of the unauthorized posts included links to the Review-Journal website.

It's obvious in most of the cases that someone re-posted Review-Journal material online without authorization, but defense attorneys say that doesn't necessarily amount to copyright infringement and they cite the concept of "fair use."

Some are also arguing the Review-Journal provides an "implied license" to re-post content since it encourages readers to share its content online -- an argument one federal judge has ruled may have merit.

One of the latest arguments, which judges haven't yet ruled on, involves the allegation of "barratry," or the excessive incitement of litigation. Defense attorneys say "barratry" supports their allegation that Righthaven comes to the lawsuits with "unclean hands" -- with unclean hands being a defense to copyright infringement suits.

This is related to Righthaven's procedure of obtaining Review-Journal copyrights weeks or months after the alleged infringement of the material covered by the copyrights -- and then typically suing without it or the Review-Journal trying to resolve the problem out of court. Newspapers generally in the United States ask or demand that infringing material be taken down or be replaced with links before resorting to litigation.

Righthaven has denied the barratry allegation, saying the lawsuits are necessary to deter rampant online infringement of Review-Journal material.

A newer defense strategy involves allegations of "champerty" -- allegations that the lawsuit arrangement between the Review-Journal's owner Stephens Media LLC and Righthaven is prohibited by law.

Stephens Media is controlled by the family of Arkansas investment banking billionaire Warren Stephens and one of the Stephens companies has invested in Righthaven.

Champerty, according to Jonathan Fountain, one of the Lewis and Roca LLP attorneys in Las Vegas defending Righthaven cases, is an arrangement where a party with no interest in a lawsuit agrees to finance and bear the expense of litigation in exchange for a portion of the proceeds.

"The doctrine originated in medieval England where the wealthy would assist poorer members of society by supporting their legal disputes with the wealthy citizen's personal or political enemies," Fountain wrote recently in an online post at "In return for funding the lawsuit, the party to whom the claim actually belonged promised to give his or her benefactor a stake in the outcome. Through this practice, the wealthy became wealthier."

"Champerty was prohibited at common law and is prohibited by Nevada law today," Fountain wrote in the post.

In at least two of the Righthaven lawsuits, Lewis and Roca is using the champerty defense against Righthaven.

"Stephens Media’s 'reversion rights' within the copyright assignment raise serious questions as to what rights Righthaven actually has in the copyrighted work (story), and how meaningful those rights are," Lewis and Roca attorneys John Krieger and Nikkya Williams wrote in court papers this month in the case of a Righthaven defendant in Lehi, Utah, called Vote for the Worst LLC.

Part of an April 11 Review-Journal story about American Idol contestants visiting Las Vegas was posted without authorization at that site, court records show.

"All of the rights Stephens Media assigns to Righthaven are 'subject to the assignor’s rights of reversion,' which are not specified anywhere in the assignment. This raises serious questions about what rights Righthaven actually has to sue (the Vote for the Worst) defendants and those similarly situated, as it could be paying Stephens Media for the bare right to sue for copyright infringement, with those rights reverting back to Stephens Media once Righthaven has recovered a settlement or judgment from the affected defendants. In fact, the wording of the purported transfer seems to indicate that the sole purpose of assigning the copyrights is to give Righthaven technical legal standing to pursue infringements on rights that, in all actuality, still belong to Stephens Media. Such arrangements are prohibited as champertous under Nevada law," the attorneys wrote.

"The wording of the assignment itself implies nothing less than a champertous agreement. Stephens Media agrees to let Righthaven enforce Stephens Media’s rights, but without an acceptable attorney-client relationship, and Righthaven agrees to provide services and money in return for prosecuting a lawsuit. Under Nevada law, the (copyright) assignment is champertous and is, therefore, invalid," they wrote.

The Lewis and Roca attorneys also challenged Righthaven's assertion that the Utah defendant should have to deal with the lawsuit in Nevada. In this case, they said, no one from Nevada read the story at issue and just one third of the story was posted deep within a message board by a third party from India.

"Righthaven may claim an interest in litigating this matter in Nevada, but it is clear that Righthaven is merely an arm of an Arkansas-based company, and a champertous enterprise between that Arkansas company and its 'grubstaked' copyright-trolling operation," the Lewis and Roca attorneys wrote, referring to a column by Review-Journal Publisher Sherman Frederick in which it was disclosed that Righthaven was "grubstaked" by a Stephens Media entity.

"Furthermore, Righthaven is desperately (albeit unsuccessfully) attempting to find other newspapers that are willing to join in its bizarre campaign. Righthaven fancies itself a potentially national corporation, yet seems to become provincial when it comes to inconveniencing and bullying smaller and less-funded defendants, who have engaged in de minimis (trivial) offenses, if they are offenses at all," the Lewis and Roca attorneys wrote.

Righthaven attorneys have not yet responded to the champerty allegation in the Vote for the Worst case, but they have insisted their copyright assignments are valid for lawsuit purposes.

"The Righthaven assignment effects an assignment of the right to sue for all past, present, and future, infringements of the work (story)," Righthaven attorneys J. Charles Coons and Joseph Chu said in court papers this month.

(Some Righthaven observers have asked about trademark and copyright legal work Lewis and Roca has done for the Las Vegas Sun and its sister companies. The Sun has covered numerous lawsuits in which Lewis and Roca -- and other law firms involved in the Righthaven cases -- have represented various plaintiffs and defendants. When the Sun and its sister companies are not parties in lawsuits, as is the case with the Righthaven suits, the Sun has found it unnecessary to disclose its unrelated relationships with the law firms involved.)

In other Righthaven developments:

-- Chief U.S. District Judge for Nevada Roger Hunt last week denied a motion for dismissal of a Righthaven lawsuit against Industrial Wind Action Corp., which operates an educational website about environmental issues with wind energy.

The site is operated from the home of Lisa Lenowes in Lyman, N.H.

Industrial Wind said it doesn't do business in Nevada and isn't subject to the jurisdiction of the Nevada court.

But for purposes of the dismissal motion, Hunt found willful copyright infringers purposely subject themselves to the jurisdiction of the copyright owner's home state court.

The stories at issue ran in the Review-Journal as well as another Stephens Media paper, the Ely Times.

-- Righthaven reached a confidential settlement of its lawsuit against Free Speech Systems LLC and radio talk show host Alex Jones in Austin, Texas, who have websites called and Court records indicate a substantial portion of a Review-Journal column was posted on these sites, with a link to the entire column; while message board users of the sites posted additional entire Review-Journal stories with links.

Jones in July vowed to fight the lawsuit, calling it "totally without merit" and saying it "appears to be purely predatory."

But he apparently changed his mind.

"Righthaven, Free Speech Systems and Mr. Jones have agreed to settle the matter by a written agreement," Righthaven said in court papers last week.

-- One of the latest defendants to be sued by Righthaven is disputing the allegations against him. Rod Brooks in Victoria, British Columbia, and his website,, were sued last weeek after a Review-Journal story -- about a 911 call related to the police shooting at Costco of Erik Scott -- allegedly was posted on the site.

Brooks is a 911 operator and communications trainer with the Victoria Police Department, his website says.

"We clearly operate within the 'fair use' legal doctrine of copyright law, distributing published local news to educate and inform members of the emergency services communications profession. Given the extent of similar professional sites distributing news in this legitimate and valuable context, we are surprised that (the Review-Journal) wouldn't recognize this," Brooks said.