Thursday, November 03, 2011

Blogger Beats Righthaven's Predatory Copyright Lawsuit

first became aware of this group called Righthaven a couple of years ago, as a reader and member at FreeRepublic.com, as well as various updates on websites, persons, etc that the group were suing for copyright claims.

Earlier this year, I was communicating with friend and fellow blogger Donald Douglas at American Power, who was telling me about how Righthaven had sued him.

The good news....Donald won the case!  He writes about it here.

Righthaven sued me for alleged copyright violation on March 8, 2011. The docket listing is here. The lawsuit claimed that I'd infringed the copyright held by the Denver Post for its picture of the invasive pat down at this article: "Controversy over pat-downs, body scans lands at DIA." Like dozens of other bloggers, I'd featured a full-size screencap of (the article and) the crotch-grab photograph in a post on TSA's "touching junk" backlash. I filed a motion to dismiss pro se. Attorney David Kerr provided legal advice pro bono.

Righthaven files "no warning" lawsuits. That is, it gives no advance notification to defendants, which violates the norm of providing "take down notices" to those suspected of copyright violations. By doing this, Righthaven --- which made a speciality out of suing small-time bloggers and "mom-and-pop" businesses --- was able to scare the bejesus out of its targets, who then would settle out of court generally in the three to five thousand dollar range. Defendants were threatened with the possibility of a $150,000 judgment and the forfeiture of their website's domain name (URL address). Let me tell you: It's frightening as hell opening up that letter of service and reading the lawsuit. You can't even believe you're being sued, but you can't ignore it or wish it away. A non-response would result in a default judgment, so there's no time to dilly-dally. No wonder so many defendants settled out of court rather than attempt a legal defense, especially since obtaining legal counsel and going to trial would probably run into the tens of thousands of dollars on average. I first found out about the lawsuit from Steven Green of the Las Vegas Sun, who left me message on Facebook and then the link to this article mentioning me as a defendant.

Righthaven's model is entirely predatory, and the company soon earned everlasting enmity by filing lawsuits against folks who were unemployed, on public assistance or disabled. Righthaven, for example, sued cat-blogger Allegra Wong of Boston, who was unemployed and receiving "financial support from a companion." Righthaven also sued Brian Hill of North Carolina. Hill is autistic and chronically ill and is supported by Social Security disability benefits. My attorney David Kerr successfully defended Hill, whose story was featured in the New York Times, "Enforcing Copyrights Online, for a Profit."

After the Hill case, Righthaven seemed to come under withering fire from defendants who refused to settle with what many considered a bloodsucking copyright troll. In a series of cases out of Federal District Court in Nevada, defendants were able to show that Righthaven in fact failed to own the copyrights for the materials over which it was suing. The company had entered into a "strategic alliance agreement" with the Las Vegas Review-Journal, and in April, Roger Hunt, the Chief U.S. District Judge for Nevada, ordered the agreement unsealed in a case involving the Democratic Underground. In the following weeks and months Righthaven continued to suffer defeats at the hands of judges in Nevada, and then later in Denver as well, where soon enough Senior U.S. District Judge John Kane would start handing down a series of devastating defeats for Righthaven. Eventually the Denver court threw out 34 cases filed there alleging copyright violations (including mine), most likely all of them involving the TSA pat down photo. See: "Judge: Righthaven lacked standing, abused Copyright Act."

That was about five weeks ago. Since then Righthaven's been hit with judgments totaling several tens of thousands of dollars and it's been unable to make good on the payments, instead asking for leniency and extensions from the courts. But time's running out. The news out this week is that the District Court in Las Vegas has ordered U.S. Marshals to seize more than $63,000 in Righthaven assets. See: "Marshals ordered to seize Righthaven assets." And see this report from Nate Anderson, at Ars Technica, "US Marshals turned loose to collect $63,720.80 from Righthaven"

Well, let me join others in saying congratulations and great work to you, Donald, for fighting the good fight and winning this battle. This is an important decision especially for all who are involved in the new media and in our ability to report, comment on events.

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