Former Righthaven Defendant Blogs About 'Beating Righthaven'

Beating Righthaven
By Donald Douglas

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."
--snip--
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...

See: Blog post in full

Attorney David Kerr, who represented Brian Hill, also assisted Donald Douglas.

Judge Denies Attorney's Fees to Defendant Who Inspired Many Other Victims to Fight Back

Earlier today, U.S. District Judge John Kane denied a motion by defendant Brian Hill’s attorneys that Righthaven be required to pay his legal fees. Brian Hill, who suffers from autism and other disabilities, captured the attention of the New York Times, Reporters Without Borders and many other groups and individuals for refusing to cave into Righthaven's intimidation tactics. After the ruling, Brian Hill's attorney David Kerr told VEGAS INC that he was disappointed in the ruling but that he respected it.

"I think Brian deserves to be recognized for being the first Colorado defendant to really refuse to give into Righthaven’s heavy-handed tactics and stand up and fight. I certainly do think there is a correlation between Brian’s case and the MediaNews Group’s decision not to continue their relationship with Righthaven," Kerr said.
MediaNews Group, owner of the Denver Post, disclosed this week it’s not renewing its copyright protection contract with Righthaven. The decision came after several public relations debacles, most notably about the Hill case.

See: Related VEGAS INC article
See: Judge Kane's ruling in full
See: Brian Hill's website (uswgo.com)
See: Brian Hill's Scribd collection

Lightening Bolts Fired in Brian Hill's Reply; Alleged Fabricated Press Release is Just One

New charges were leveled at Righthaven LLC in a recent Reply filed by attorney David Kerr of the Santangelo Law Offices, who represents defendant Brian D. Hill. The Reply is brimming with details, particularly concerning the Release and Settlement Agreement (Exhibit F) crafted by Righthaven. (A related VEGAS INC article contains the full text of the proposed press release as does the last page of the agreement.) I've pulled a section from the Reply where Kerr summarizes the agreement's terms:

Conditions of Release (Page 21 of Reply)

1. Righthaven inappropriately sought to enjoin Mr. Hill from exploiting any and all Righthaven intellectual property, apart from the subject image, without identifying or specifying such works. Such overbroad demand being subject to an award of liquidated damages of $10,000 per breach.
2. Righthaven inappropriately sought to bind non-parties to the terms of the settlement, namely Roberta Hill, and Mr. Hill’s counsel.
3. Righthaven inappropriately sought to use the settlement agreement to remove content from non-party websites that are known to be critical of its for-profit litigation model.
4. Righthaven inappropriately sought to use the settlement agreement to obtain potentially privileged and confidential information from Mr. Hill’s counsel.
5. Righthaven inappropriately sought to condition the release of claims against Mr. Hill only on completion of certain actions by counsel and other non-parties
6. Righthaven inappropriately sought to condition the release of claims against Mr. Hill based on relinquishing his first amendment rights.
7. Righthaven inappropriately sought to condition the release of claims against Mr. Hill to stifle public criticism.
8. Righthaven inappropriately sought a permanent gag order against Mr. Hill, his mother and his attorneys, not only as to the terms of the settlement, but as to ever publically discussing any aspect of this case, or Righthaven generally. Such onerous demand being subject to an award of liquidated damages of $10,000 per breach.
9. Righthaven inappropriately sought to condition settlement on requirements that counsel for Righthaven remove, or seek to have removed any public comments made about this case or Righthaven, and that counsel for Mr. Hill would be further enjoined from ever publically discussing Righthaven, or this case, except with explicit permission of Righthaven, prejudicing his ability to represent other Defendants accused by Righthaven.
10. Righthaven inappropriately sought to impose onerous liquidated damages of $10,000 per breach of the settlement agreement. Such damages were applicable to Mr. Hill’s mother, and could be construed to apply to Mr. Hill’s counsel.
11. Righthaven inappropriately sought to fix jurisdiction and venue for any breach of this agreement in Nevada despite being aware that Mr. Hill’s medical and financial condition would make it impossible to defend his rights in that jurisdiction.
12. Righthaven inappropriately sought to require attorneys’ fee pursuant to any breach of the settlement agreement, even though they were aware that Mr. Hill had no recoverable assets, and that his only source of income was exempted from such relief under federal law.
13. Righthaven inappropriately sought to issue a press release that fabricated specific quotes falsely representing that Mr. Hill, his mother and attorney’s had made false statements directly contrary to the facts and prior declarations made to this court. The ultimate result being that, Righthaven sought to leverage and condition Mr. Hill’s release with a false admission that he, and his mother, and potentially his counsel had perjured themselves before this Court.
14. Righthaven inappropriately sought to issue a press release solely to embarrass and disparage Mr. Hill, insinuating that his mental condition may have led him to make false statements to the public and the Court.
15. Righthaven inappropriately sought to issue a press release which falsely represented that Mr. Hill’s counsel endorsed Righthaven’s business practices and that Righthaven had exhibited professional behavior during settlement negotiations.
16. Righthaven inappropriately sought to have Mr. Hill provide a false apology for his actions which he maintains are fair use under the law.
17. Righthaven inappropriately sought to extract a false apology from Roberta Hill’s for critical statements regarding Righthaven.
18. Righthaven inappropriately sought to extract a false concession from Mr. Hill’s counsel for critical statements made regarding Righthaven’s business model.
19. Righthaven inappropriately sought to fabricate quotes from Mr. Hill’s counsel that would contradict the facts of Righthavens litigation conduct in an effort to mitigate or cut-off any accrued liability.
20. Righthaven inappropriately sought to fabricate quotes from Mr. Hill’s counsel that would falsely admit, and make legal conclusions that Righthaven was within their rights to pursue claims of copyright infringement against Mr. Hill, and that Mr. Hill’s actions violated the law. Such false concessions would result in extreme prejudice to Mr. Hill’s legal rights and any later appeal efforts, but would be in total derogation of counsel’s ethical and professional obligations to his client.

See: Article in full | View: Reply in full

My God, what have other Righthaven victims signed?

Righthaven Files Response to Brian Hill's Motion for Legal Fees, Reveals Confidential Settlement Demands

Righthaven has given their response to awarding legal Fees to Brian Hill's Attorney David Kerr. Their main argument is that they should not be subject to attorney's fees because they dismissed the case against Brian Hill with prejudice which means the case cannot be refiled. They are trying to make the case that if a case is going badly for a plaintiff they can simply dismiss it with prejudice and it absolves them from any consequences even if their actions caused the defendant and/or the defendants lawyer to incur large legal costs . Novel legal theory but I'm sure David Kerr will have no trouble poking holes in it.

Read: Righthaven's response to Brian Hill's motion for legal fees

In their response, Righthaven reveals their "Confidential" settlement demands and claim that Brian Hill was acting in "bad faith" for not simply capitulating to Righthaven's demands. In the settlement demands that Righthaven has revealed shows they were willing to settle for as low as $1 even though they had demanded as much as $6000, but even that $1 would have been illegal per federal law for them to collect since Brian Hill's only form of income is Social Security Disability.

The worst part of the settlement demand was to force Brian Hill to publicly disavow everything he had ever said or written about Righthaven and to remove any posts he had written about them and never to write anything "untruthfull" about Righthaven which would mean anything Righthaven objects to. This assault on Brian Hill's First Amendment right to free speech was unacceptable.

Righthaven also claims in their response that they did not object to Brian Hill's motion to get a 21 day extension after he had obtained legal council from David Kerr.

4.Righthaven did not oppose Defendant’s first request for an extension of time to respond to the Complaint.

This is at odds with this Las Vegas Sun article by Steve Green dated March 1, 2011 where attorney David Kerr says that Righthaven did oppose Hill's 21 day extension:

Despite all that, Kerr complained Righthaven wouldn't agree to give Kerr more time to file a more thorough legal response.
Senior U.S. District Judge John L. Kane sided with Kerr on Tuesday, giving him until March 21 to file an amended answer to the lawsuit.

Brian Hill and other Righthaven Victims Featured in the New York Times

Finally a major news organization writes about Righthaven and some of their victims including Brian Hill of North Carolina whose case was recently dismissed by Righthaven after a string of bad press stories over suing the mildly autistic blogger for alleged copyright infringement over the now infamous TSA image. Brian Hill recently reopened his alternative news site uswgo.com. Brian Hill's lawyer, David Kerr of Colorado, is now in the process of petitioning the Colorado District Federal Court to order Righthaven to pay his legal fees.

Read the Story in the New York Times: Enforcing Copyrights Online, for a Profit

It's good to see Brian Hill is still giving Righthaven major headaches.

Righthaven Drops Suit Against Brian Hill

UPDATE 04/11/11: Judge Kane, who is presiding over this case, was not too pleased with Righthaven's rant about Brian Hill in their notice of dismissal and quickly issued an order striking all but the first paragraph off the record keeping only the part stating they are dropping the suit.

See: Judge Kane's Order to Strike

04/11/11
Righthaven LLC, of Nevada has dismissed the case against North Carolina blogger Brian Hill. They were handed a humiliating defeat after they were unable to answer Brian Hill's dismissal petition written by attorney David Kerr. Righthaven had requested a 21 day extension which was summarily rejected by Judge John L. Kane of the Federal District Court of Colorado who issued a stern rebuke against Righthaven and their business model.

See: Righthaven's notice of dismissal

Brian has maintained his innocence in this matter and refused to be intimidated into settling. David Kerr said that there are still issues to be addressed by Righthaven so even though Brian Hill is off the hook, Righthaven may not be. There are also scores of other cases pending in Colorado and being presided over by the same judge. Brian Hill's case will certainly way heavily on other cases and should have Righthaven re-evaluating their business model and hopefully will convince News Media Group and the Denver Post to re-evaluate their business arrangement with Righthaven.

See: Related Ars Technica article

Colorado Federal Judge Rebukes Righthaven

Judge John L Kane of the Federal Court of the District of Colorado has denied Righthaven's motion to grant a three week extension to respond to Brian Hill's motion to dismiss that was submitted to the court by his attorney David Kerr.

In Judge Kane's denial to extend he issued a scathing rebuke against Righthaven stating his court will not be used as a tool to encourage and exact settlements from defendants who may be intimidated due to the high cost of litigation and potential liabilities. Thus cutting to the heart of Righthaven's business model.

See: Judge Kane's ruling

"the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

The very fact that Righthaven requested an extension suggests they are having difficulty answering David Hill's dismissal petition by David Kerr and are stalling for time in hopes of strong arming some kind of settlement which, according to court documents, they are far from getting.

The Judge also stated that after Righthaven responds this case will not proceed further until he rules on the motion to dismiss which is a good sign he will grant the motion.

The Judge appears to have little patience for Righthaven and their business model. This is consistent with Federal Judges in Nevada who have not been kind to Righthaven. Federal Courts do not like being used for profiteering and this ruling is another sign that Righthaven has a lot of trouble ahead in the courts.

See: Related VEGAS INC article