A development in the Righthaven newspaper copyright infringement lawsuit campaign may generate some guidance on what damages Righthaven is entitled to collect from its lawsuits and whether it can seize the websites of lawsuit defendants.
In a lawsuit spree unprecedented in the U.S. newspaper industry, Las Vegas-based Righthaven LLC since March has sued at least 238 website operators and message-board posters, charging they displayed without authorization material from the Las Vegas Review-Journal and the Denver Post.
Many of these lawsuits have been settled under undisclosed terms.
But some defendants are fighting back, saying the federal courts handling the cases don't have jurisdiction over them, that their online posts are protected under the fair use doctrine of copyright law and that the Review-Journal and the Post encouraged the online sharing of their material.
In other Righthaven cases, defendants either haven't been served or court clerks entered defaults against the defendants after they were served but failed to respond to the Righthaven suits.
Righthaven has now for the first time asked a federal judge to convert one of those clerk defaults into a monetary judgment and to award it the defendant's website domain name.
The case involves Bill Hyatt, who was sued in U.S. District Court for Nevada on Oct. 6 after Righthaven said a Review-Journal entertainment column was posted on Hyatt's website 1ce.org -- a WordPress blog called "News for Everyone."
A court exhibit indicates the post on that website credited the column to the Review-Journal and linked back to the Review-Journal website.
Court records indicate Hyatt hasn't responded to the lawsuit. The 1ce.org website remains active and on Saturday displayed an advertisement for the newly-opened Ravella at Lake Las Vegas hotel.
While Righthaven has settled at least two of its lawsuits for less than five figures, it's going for all the marbles in its judgment request against Hyatt, this week asking U.S. District Judge Kent Dawson to award it control of the 1ce.org website domain name, $150,000 in damages, $1,500 in legal fees and recovery of its $350 lawsuit filing fee.
Righthaven also asked for a permanent injunction barring Hyatt from "further infringement of Righthaven-owned copyrighted works."
Righthaven said in Thursday's motion it's entitled to $30,000 in statutory damages under the Copyright Law -- and is entitled to increase that to $150,000 "because defendant's infringement of the work was willful."
"In copyright infringement cases a plaintiff may elect either actual or statutory damages," Righthaven said in its filing. "In fact, the law is clear that statutory damages are recoverable without regard to the existence or provability of actual damages.
"The United States Supreme Court has held that an award of statutory damages within the limits prescribed by Congress is appropriate `even for uninjurious and unprofitable invasions of copyright,"' Righthaven said in its filing.
Righthaven in its filing didn't address why it's entitled to control of the 1ce.org website domain name.
Defense attorneys in other cases have said there's no provision in U.S. copyright law for such a domain name transfer and they complain this standard demand in Righthaven's lawsuits is included to pressure defendants into settling.
Righthaven, in other cases, has insisted these demands are appropriate.
So far, none of the federal judges hearing Righthaven cases have ruled on the issue.
It's not known when Dawson will rule on Righthaven's judgment motion. A ruling by Dawson may advance the rapidly-developing case law generated by the Righthaven lawsuits.
This case law already includes a fair use dismissal and may expand with a second threatened fair use dismissal as well as counterclaims against Righthaven and Review-Journal owner Stephens Media LLC -- an affiliate of which has invested in Righthaven.
In another development, another Righthaven defendant filed court papers denying the copyright allegations against him.
The defendant is Wayne Hoehn, who in January became one of the first message-board posters to be sued on his own -- without the message board itself being sued.
Hoehn's Las Vegas attorney, J. Malcolm DeVoy IV of Randazza Legal Group, argued in a motion for summary judgment on fair use grounds Friday that the Righthaven lawsuit was filed "to wrest a quick settlement from Mr. Hoehn on shaky copyright infringement grounds, based upon questionable rights -- rights it purchased from the author only after Righthaven discovered Hoehn’s post, for the sole purpose of filing suit against Hoehn."
"Like other Righthaven targets, Hoehn is not a large business or well-funded entity, but an individual who posted content from the Las Vegas Review-Journal to a website in order to foster an online discussion about the article itself," Hoehn's filing said. "This commonplace conduct permeates the Internet to a degree where Righthaven would have to file lawsuits in perpetuity to make it halt – if the law gave it a right to make it halt."
Hoehn's filing suggested that far from being a rogue copyright law violator, he is "a decorated veteran of the Vietnam War" with the Silver Star, Bronze Star Medal and the Purple Heart among his awards. He's also the proprietor of Mid-States Insurance Services in Bowling Green, Ky., which has an A+ rating from the Better Business Bureau, Hoehn's filing said.
Hoehn's attorney argued in his motion that from July 1999 through January 2011, Hoehn engaged in "vigorous debate and discussion" on a multitude of topics on the MadJackSports website (itself a former Righthaven defendant).
The filing said Hoehn has made more than 18,000 posts on the website including posts about strains that public pensions put on state budgets. In order to generate conversation among forum users, he posted a Review-Journal column about pensions in Nevada, attributing the information to the Review-Journal, the filing said.
"Hoehn did not post the column for profit" and "Hoehn’s sole purpose in posting the article was identical to a man cutting out a newspaper article and posting it on a community bulletin board – he sought to engage in debate and discussion with fellow citizens on a matter of public importance and to contribute to the crowd-sourced educational discussion about matters of public importance, as he had on many topics over the past decade," the filing said.
"The republication of copyrighted material does not automatically give rise to a claim for copyright infringement. A defense to copyright infringement claims, the fair use doctrine holds harmless those who use copyrighted material for purposes of education, commentary or critique," the filing said.
"Hoehn, who provided exemplary service to his country, understood the vital role this discourse plays in democracy. By debating important political issues with his acquaintances, Hoehn refined his own views and helped others develop their own. While this discourse may have given the owners of Righthaven the fantasy of a quick cash-grab from Mr. Hoehn, this honorable court must turn back this ignoble misuse of the copyright laws and protect the citizenry’s right to free discourse on matters of public concern," the filing said.
Hoehn's law firm, Randazza Legal Group, is led by San Diego media attorney Marc Randazza, an early critic of Righthaven.
Righthaven hasn't yet responded to Hoehn's fair use arguments.