9th Circuit rules – Righthaven is dead, finally. Righthaven v. Hoehn

May 9, 2013

The order speaks for itself – and here it is.


One of the dumbest articles ever written about Righthaven

July 4, 2012

A lot has been written about Righthaven v. Hoehn (my case), but the following article was so idiotic, so uninformed, such shoddy work, that I feel the need to show my readers this idiocy in its entirety so that they can’t claim that I selectively edited it. Further, I want the content preserved, just in case the author (Steven Shaw) decides to edit it after the fact to remove some of the idiocy.

As you read, you’ll find that there is not a single intelligent sentence in the entire article:

Remember Righthaven, the “copyright troll” that was threatening to sue anyone and everyone who reposted copyrighted content online? The company was ultimately drummed out of existence, in part for its distasteful tactics.

But the ouster of Righthaven left one issue on the table: can reposting an entire article ever be fair use?

I don’t think it can. But a federal judge in Nevada, probably in his understandable eagerness to make Righthaven go away, issued a ruling that leaves the door open for infringing bloggers to argue that posting entire articles can be fair use or at least so harmless as to be non-actionable.

No matter how distasteful we find a company like Righthaven, that distaste should not be allowed to gut the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends. Republishing an entire article should be an absolute no no. I hope Righthaven gets the opportunity to appeal on that issue.

Outlets like Ars Technica and Wired have nothing but contempt for Righthaven. I’m interested to see how they react when bloggers reprint entire articles from their websites. (source)

Amazing. Simply amazing. The Author lists among his qualifications that he “used to be a litigation attorney at Cravath, Swaine & Moore.” I presume that in his career, maybe he handled a matter that was at least tangentially related to copyright. Ok, I presumed no such thing, since he obviously doesn’t know anything about fair use. But, I figured I would find that he was sixth chair on a bankruptcy case or something… you know, I’d find a pile of cases that had nothing to do with copyright, and make some snarky remark about how antitrust or bankruptcy have nothing to do with copyright.

Imagine my surprise when I tried to find a single case he worked on as a “litigation attorney at Cravath, Swaine & Moore” and found this as the result.

Some illustrious copyright litigation career Mr. Shaw has there, huh?

Ok, maybe a better search string would have found his illustrious copyright litigation experience. If anyone has access to Lexis or Westlaw and finds contrary results, let me know and I’ll update.

Since he was admitted to the New York bar in 1995 (source), and then left Cravath in January of 1996 (source), I’d say that saying he “used to be a litigation attorney at Cravath” may be truthful, but its a bit of a dishonest repackaging of the facts. Lets not call him a “liar,” but lets call him “full of shit.”

Of course, we can figure that out from his statement here:

“But the ouster of Righthaven left one issue on the table: can reposting an entire article ever be fair use?

I don’t think it can. (source) “

There is absolutely no reason why reposting an entire article can never be fair use. Of course, I take no quarrel with commenters who might think that Righthaven v. Hoehn was decided incorrectly on the fair use prong. Reasonable people might have non-stupid theories about that. But, to say that reposting an entire article can NEVER be fair use is another way of saying “I am a blowhard idiot who doesn’t know squat about copyright law, but I am desperate to say something relevant about it.”

Before that, he wrote:

Remember Righthaven, the “copyright troll” that was threatening to sue anyone and everyone who reposted copyrighted content online? The company was ultimately drummed out of existence, in part for its distasteful tactics (source)

Maybe Shaw could put down the fork and do some research? Righthaven was not “drummed out of existence” for its “distasteful tactics.” It was “drummed out of existence” because every single judge that looked at it determined that it did not have standing. Shaw might have known that, had he actually done any research.

Later, Shaw writes:

a federal judge in Nevada, probably in his understandable eagerness to make Righthaven go away, issued a ruling that leaves the door open for infringing bloggers to argue that posting entire articles can be fair use or at least so harmless as to be non-actionable. (source)

Really? This guy claims that he “used to be a litigation attorney,” yet he impugns the work of a federal judge without, it seems, ever so much as reading his opinion. Shaw says that since Judge Pro just wanted Righthaven to go away, he ginned up some new rule that posting an entire article can be fair use? And, Shaw thinks that Pro’s decision “leaves the door open?” If Mr. Shaw had ever so much as researched 17 USC Sect. 107, he would find that the door was already wide open. Pro just rode through it.

Still looking for an intelligent word in this crock of shit, lets move on to the next paragraph:

No matter how distasteful we find a company like Righthaven, that distaste should not be allowed to gut the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends. Republishing an entire article should be an absolute no no. I hope Righthaven gets the opportunity to appeal on that issue.

Righthaven v. Hoehn “gut[s] the body of intellectual property law upon which our global economy — moving steadily away from production of goods — depends” ????

What?

The whole global economy is threatened because a district court agreed with the premise that yes, sometimes, you can even take an entire work and call it “fair use.” Wow. I’ll start stocking up on gold bars, canned goods, and ammunition right away.

Mr. Shaw’s work is clearly shoddy. The article is void of any actual knowledge, and anyone who reads it (absent this kind of criticism) will actually be markedly stupider after they finish reading.

If Mr. Shaw is correct, then I don’t get to cut apart his dumb crap, line by line, because “Republishing an entire article should be an absolute no.”

As far as “I hope Righthaven gets the opportunity to appeal on that issue” goes, I finally agree with him. As just an ego-driven boor, I am DYING for Righthaven v. Hoehn to be decided by the 9th Circuit. Then, I get more fees, I get my name on a 9th Circuit win, and I get to grind my boot into Righthaven’s face some more.

But, as a lawyer, I need to think of my client. For his sake, I hope that the case just ends. It is like a bad zombie movie.

Now, Shaw finally shows his agenda:

Outlets like Ars Technica and Wired have nothing but contempt for Righthaven. I’m interested to see how they react when bloggers reprint entire articles from their websites.(source)

I know how they would react. They would react by asking themselves “is this fair use?” If so, they would move on.


Wanna own the Righthaven trademark?

May 2, 2012

By J. DeVoy

Hey, you! Give your failed life some meaning by purchasing Righthaven’s registered servicemark!  Available now on eBay!

OWN RIGHTHAVEN’S  “COMMERCIAL GOODWILL” LOLOLOLOLZ!


ABA Journal Magazine Tackles Righthaven in May 2012 Issue

April 23, 2012

Remember Righthaven?  While it has been stripped of its intellectual property and claims against it keep piling up, the fat lady has not yet sung – and the ABA has noticed.

The May 2012 ABA Journal’s cover story is the aftermath of Righthaven.  Eriq Gardner, who Righthaven once sued for posting an image of an exhibit from one of its court pleadings, examined both sides of the copyright enforcement equation.  Marc Randazza and Ron Coleman are quoted in the lengthy piece, which centers on Righthaven but touches on the RIAA’s litigation campaign, the mass-joinder suits brought by porn studios, and the realities of plaintiff-side copyright enforcement.

Righthaven’s CEO, Steven Gibson, is quoted with the following observation:

“One of the questions for the article is why is it so difficult for copyright owners to hire competent copyright litigation counsel?” he said. “There’s not a lot across the country. Definitely not like personal injury lawyers. You can’t go into the phone book and find a listing. Why is it this difficult? Why isn’t there more copyright litigation?”

Yet, even with Righthaven.com no longer belonging to Nevada’s Righthaven LLC, he is optimistic about the venture’s future.

“Righthaven remains the vehicle for dealing with infringements on the Internet,” Gibson told me recently.

A motion by the EFF seeking personal sanctions against Gibson at a rate of $500 per day is still pending as of this writing.

The problems of online copyright infringement and enforcement are real, and few would argue that there is not some useful role of copyright in society.  These controls, however, cannot and should not completely gobble up protected speech – especially since the 1976 Copyright Act codified fair use in 17 U.S.C. § 107.  Even allowing breathing space for hilarious derivative works, much work needs to be done with respect to fighting infringement, even as the law for doing so remains in flux.


Latest Righthaven Developments

March 28, 2012

The Gametime IP blog discusses them here.


More Righthaven Fun

March 6, 2012

Whoops.


All Righthaven’s Intellectual Property Are Belong To Us

March 5, 2012

So sayeth the Honorable Philip Pro of the District of Nevada. (source)


Righthaven.com is up for auction

December 26, 2011

Righthaven went after hundreds of defendants in copyright cases.  Often, the defendants were innocent and engaged in fair use.  In all cases where a court has been asked, they found that Righthaven had no right to bring the suit in the first place.  In all of their cases, Righthaven asked the court to award them not only money, but the defendant’s domain name.  

After losing a case to my client, Wayne Hoehn, Righthaven is at least $63,000 in debt to him.  They refuse to pay.  Now their domain name is up for auction to the highest bidder.  

The auction is here. 


More Righthaven Fun – Urgent Appeal

October 17, 2011

Since my firm is handling this litigation, I will keep my comments somewhat neutral.

Our old friend, Righthaven was ordered to pay $34,000 to a guy they wrongly sued. Righthaven didn’t pay. Righthaven begged the court to excuse it from paying. The Court told it to pay or it post a bond for that amount. Righthaven filed an “urgent” motion with the 9th Circuit Court of Appeals. (here)

We, naturally, opposed the urgent motion. Opposition here.

I need not comment where others have done such a good job.

Ken at Popehat gives us an homage to “A Few Good Men,” with Oh, Well, If It’s An URGENT Motion, That’s TOTALLY Different.

Steve Green at Vegas Inc. provides a less opinionated, but very informative article. Righthaven facing fraudulent transfer claim.

We jump back over to the opinionated side of the coin with Mike Masnick, over at Techdirt, and his Righthaven Still Trying To Avoid Paying Any Legal Fees Of Those It Illegally Sued.


Righthaven on the small screen

September 29, 2011

By J. DeVoy

I recently caught up with a college friend who does not work in law, who asked me about Righthaven since he had read several articles linked on this blog and on my facebook account.  I explained the status of the approximately 18-month litigation campaign.  After a few moments of confused silence, he told me it would be much easier to understand as a documentary or made-for-television movie.

So what format would make the Righthaven story comprehensible?

Documentary

Pros: Designed to present information, and people engage one with a longer attention span.  Documentaries have been used to tackle complicated factual and legal issues, such the Enron scandal and more recent economic collapse.  If a former (or “recovering”) lawyer like Michael Whiteacre approached the project, the material would translate well.

Cons: Documentaries are always accused of having an agenda, even when made as fairly as possible.  Dig! made the Brian Jonestown Massacre look like a band of aimless drug addicts, despite being vastly more creative than the Dandy Warhols.  Before The Light Takes Us underplayed Satyricon’s role in black metal and probably made Count Grischnackh out to be more philosophical than he was in the early 1990’s.  American Psycho made people working in finance look like insensitive jerks.  These were not intentional motives of the directors, but natural consequences of editing the film available to make the movie.

Made-for-TV Movie

Pros: Large budget, and will reach many people.  Can be spread out over several nights.  Everyone wins when the network tries to buy rights to their likeness to avoid even possibly getting sued.

Cons: Will be made accessible to many people, which requires things like dumbing down the facts and law until neither are comprehensible.  Will fall prey to the ratings trap and depict IP lawyers as 6’3″ alpha bros with square jaws and biceps capable of curling 250 lbs.  Viewers would ask “which one was Casey Anthony?”


Righthaven loses in Colorado

September 28, 2011

By J. DeVoy

Yesterday, the District of Colorado dismissed Righthaven LLC’s copyright infringement lawsuit against Leland Wolf and the It Makes Sense Blog in Righthaven LLC v. Wolf et al., Case Number 1:11-cv-00830.  The Wolf case was the only active matter in Righthaven’s 57 cases filed in the District of Colorado, as the more than 35 cases that were ongoing when Wolf moved to dismiss Righthaven’s lawsuit were stayed pending the outcome in Wolf. (The approximately 25 other suits presumably settled.)  Leland Wolf and the It Makes Sense Blog were represented by Randazza Legal Group and Contiguglia / Fazzone P.C.

The Court’s Order, authored by Judge Kane, is available here.  Judge Kane summarizes his Opinion and Order in this opening paragraph:

The issue presented in this case, whether a party with a bare right to sue has standing to institute an action for infringement under federal copyright law, is one of first impression in the Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976 Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I hold that the answer to that question is a forceful, yet qualified, “no” and GRANT summary judgment to Defendant Leland Wolf. Furthermore, pursuant to 17 U.S.C. § 505, Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees.

Apparently Judge Kane has ordered Righthaven to show cause by October 7 why its other cases should not be dismissed in the wake of this ruling. (Source.)

More coverage available at:

Vegas Inc.

Ars Technica

the EFF’s DeepLinks Blog

Techdirt

Technology & Marketing Law Blog

 

 


I.P. Links Loot and Righthaven Roundup

September 24, 2011

So apparently we are sick of China stealing our intellectual property. (source) Human rights abuses, meh, not our problem.

You think you know from Intellectual Property? Bah. Beth Hutchens pwns you. (source)

This guy could learn a bit from Hutchens. He thinks that he has a new business model of registering a common phrase and then demanding money from people who use it. (source)

Patent system out of control? Evidence needed? Patent on making a snowman. Booyah. (source)

And if you missed the recent round of Righthaven Follies:

Copyright Troll’s Assets Targeted for Seizure, Wired.

Defense attorneys say Righthaven missed deadline to pay legal fees, Vegas Inc.

Lawyer wants US Marshals to seize copyright troll’s bank account, Ars Technica.

Righthaven Fails To Pay Attorneys Fees Ordered By The Court, Court Asked To Declare Righthaven In Contempt, Techdirt.

Righthaven, King Of Suing Without Notification, Whines To Judge About Motions Filed Against It Without Enough Notification, Techdirt.

Copyright Troll Righthaven Says It’s Nearing Bankruptcy, Wired.


Righthaven — with BABIES!

August 11, 2011

By J. DeVoy

No cute pictures of infants here — just a bizarre story from San Diego

Attorney Theresa Erickson pled guilty to conspiracy to commit fraud for her role in what federal prosecutors described as a “baby-selling ring.” (source.)  Technologically, the scheme was pretty simple: Women would travel to the Ukraine to get pregnant with the eggs and sperm of donors.  This was done overseas because, at least in California, nobody would perform such an IVF using both donated eggs and sperm without a pre-existing surrogacy contract.  [I learned just enough family law to pass the bar. Bear with me. – Ed.]  The conspirators apparently misrepresented to the San Diego Superior Court that such surrogacy contracts existed, though – a fact belied by having to go Ukraine to complete the procedure.  Indeed, there was no underlying surrogacy contract, and no surrogates. (source.)

Once the pregnancy was into the second trimester, the conspirators would start shopping the babies to prospective parents.  The conspirators apparently claimed that the original adoptive parents bailed out of the deal, and a new home was needed for the baby.  The targeted parents, believing they were picking up where another couple left off, paid more than $100,000 in fees, with the women carrying the babies receiving $38,000 to $45,000 in compensation. (source.)

So to recap: Defendants, a lawyer among them, make misrepresentations to the court about rights they don’t actually have – and that never existed – in order to make money off of unwitting third parties who believed they had such rights.  Gee, never seen that before! Nope, never ever!

Erickson’s sentencing is scheduled for October 28.

H/T: Brian, Ken and Patrick


USS Righthaven hits another iceberg

July 14, 2011

By J. DeVoy

Today, U.S. District Court Judge Roger Hunt held a hearing regarding the Order to Show Cause he previously issued in Righthaven LLC v. Democratic Underground LLC et al, Case No. 2:10-cv-01356 (D. Nev.).  Righthaven, represented by Las Vegas attorney Shawn Mangano and national law firm Kirkland & Ellis in this matter (though only Mangano was at the hearing on behalf of Righthaven LLC), received the following sanctions:

• $5,000.00 in sanctions, payable within 2 weeks.  This is in addition to Righthaven’s $3,815.00 due in Righthaven LLC v. Leon et al, Due July 25th. (Order available here.)  To date, thats $8,815.00 worth of water taken on, with approximately $34,000 and $119,000 sought in other cases. (source.)

• Righthaven must provide copies of Judge Hunt’s order dismissing Righthaven’s complaint for lack of standing in Democratic Underground in all pending cases. (discussed here.)

• Righthaven must provide its Strategic Alliance Agreement with Stephens Media LLC to all defendants sued for infringement of Stephens Media LLC copyrights. (Strategic Alliance Agreement available here.)

• Righthaven must provide copies of the transcript of today’s hearing to every Court in which there is a pending Righthaven case.  During the hearing, Hunt said Righthaven made misleading statements to the court – for which Hunt said a stronger word would be appropriate – and that its conduct was “not negligence,” but part of a “concerted effort to hide Stephens Media’s role in this litigation.”  Moreover, Hunt described Righthaven as a law firm masquerading as a company. (source.)

As Randazza Legal Group is involved in numerous open Righthaven matters, no further comments shall be made.  Additional information can be found via Steve Green at the Las Vegas Sun, who has comprehensively covered this saga from its inception, and at MAL Contends,  the blog of Michael Leon, former defendant in Righthaven LLC v. Leon et al.


Righthaven again amends Strategic Alliance Agreement with Stephens Media LLC

July 8, 2011

By J. DeVoy

This new document, filed today, is here.  This is Righthaven’s second attempt to amend its strategic alliance agreement with Stephens Media LLC.

H/T: Kurt Opsahl, EFF


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