Nonprofit Asks Appeals Court to Dismiss Case; No News from State Bar; More Updates

Last week, VEGAS INC reported the following notable updates in the Righthaven saga:

• The Center for Intercultural Organizing (CIO), an Oregon-based nonprofit, asked the 9th Circuit Court of Appeals to dismiss its case given that Righthaven has been stripped of its copyrights and can no longer participate. The case involves the nonprofit reposting an entire R-J story to its website.
• The State Bar of Nevada continues to work on an inquiry concerning grievances filed by unidentified parties against Righthaven's bluetooth headset sporting CEO Steven Gibson and two other attorneys that formerly worked for his copyright trolling operation. The grievances were opened in January.
• Stevens Media LLC and Righthaven defendant Democratic Underground settled a motion requesting that Stevens Media pay $774,000 in attorney's fees to the Democratic Underground's attorneys. The settlement was disclosed May 25, but its terms have not been revealed.

See: VEGAS INC article in full

Mega Legal Fee Bill in Case Defending the Democratic Underground is Revealed: $774,00

Review-Journal Owner Facing $774,000 Fee Demand in Righthaven Case

"Righthaven and Stephens Media had an improper motivation in the pursuit of this lawsuit and their litigation campaign more generally. They sought to shake down website operators and bloggers for nuisance-value settlements with threats of seizure of their domain name and huge statutory damage awards, regardless of whether those defendants’ uses of the works at issue were actually infringing,'' said a filing Tuesday in federal court in Las Vegas seeking recovery of legal fees by Democratic Underground attorneys. ''As to deterrence, an award of fees is necessary to dissuade these parties and others from any similar scheme of shakedown lawsuits threatening staggering statutory damage awards and seizure of websites. Righthaven and Stephens Media pursued these claims such that numerous instances of legitimate fair use, like that here, would necessarily be dragged into their litigation machine."

The Democratic Underground was represented by the Electronic Frontier Foundation (EFF) and attorney Laurence Pulgram at Fenwick & West LLP in San Francisco. In their motion to be reimbursed for fees, Pulgram and EFF attorney Kurt Opsahl said over 1,000 hours were spent fighting Righthaven and Stephens media. Part of this included a counterclaim involving Stephens Media, which led to the discovery of the Strategic Alliance Agreement, and Righthaven's lack of standing to sue.

See: VEGAS INC article in full

Victory for Fair Use; Stephens Media Admits Defendant's Use of Material was Fair Use

Righthaven Case Ends in Victory for Fair Use

San Francisco - In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC.
The case began when the online political forum Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers -- was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper's website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.

See: Electronic Frontier Foundation's post in full
See: Democratic Underground's motion for summary judgment
See: Stephens Media's consent to the motion

Related articles:
Judge Rules Righthaven Does Not Have Standing to Sue; Threatens Sanctions
Righthaven’s Operating Agreement Revealed by Nevada District Court
Defense: Democratic Underground Fights Back with Help from EFF

Former Defendant Brian Hill Releases Video Explaining How Righthaven Operates

Brian Hill explains how Righthaven LLC works and
how they operate as a proxy to avoid liability

By Brian Hill
This video explains how Righthaven works as a legal and liable proxy to protect Stephens Media and it’s cohorts from any legal liability in any case that a judge rules in favor of defendants. The entire video's conclusion is from Sources such as the court documents from David Kerr for my case, The Las Vegas Sun, and other evidence built up in the courts thanks to the Randazza law firm.

See: Brian's blog post in full

Learn more about Brian's case:
Judge Denies Attorney's Fees to Defendant Who Inspired Many Other Victims to Fight Back
Righthaven Drops Suit Against Brian Hill
Lightening Bolts Fired in Brian Hill's Reply; Alleged Fabricated Press Release is Just One
Reporters Without Borders Sends Letter to Dean Singleton, Publisher of the Denver Post

LTN: September Has Been a 'Particularly Bad Month' for Righthaven; Group Seems 'Troubled'

Righthaven's House of Cards

September has been a particularly bad month for Righthaven. First, MediaNews Group let its contract expire with the company, leaving original investor Stephens Media as the only newspaper partner. MediaNews' new chief executive, John Paton, took a 180-degree turn from his predecessor Singleton in explaining the change, noting via Wired.com that "the idea that you would hire someone on an essentially -- success fee to run around and sue people at will who may or may not have infringed as a way of protecting yourself … does not reflect how news is created and disseminated in the modern world." Not only is he challenging the merits of the suits, he disagrees with the foundation Righthaven is built on.

See: Related Law Technology News article
See: Related EFF article (From The Ashes of Righthaven)
See: Related Wired article (It was a "Dumb Idea")

Too Busy to Meet Terms: Righthaven Files for Extension to Comply with July 14 Order

Righthaven appears too busy to comply with Judge Hunt's recent July 14 ruling, specifically with Local Rule 7.1-1, which requires the disclosure of interested parties in all actions. This includes providing each party with a copy of Judge Hunt's June 14, order, the transcript from the July 14 hearing, a copy of any order from the July 14 hearing to all parties involving Stephens Media and a copy of the Strategic Alliance Agreement (SAA). The application for extension requests 10 additional days.

Righthaven’s counsel has diligently investigated the number and nature of Righthaven’s pending cases concerning Stephens Media. Counsel has identified seventy-eight (78) cases that appear to fall within the Court’s Order. Counsel’s investigation has further revealed that service of process has not been made in a significant number of these cases. Counsel’s investigation has been extremely time consuming and has also been impacted by numerous pending responses dates in a significant number of Righthaven and non-Righthaven matters. In short, performing the degree of due diligence required vastly exceed the amount of time counsel anticipated dedicating to this portion of complying with the Court’s Order.

See: Application for Extension in full

In part 6, the document adds, "As of now, counsel still is investigating how to provide non-served parties with the materials required under the Order." In the past, Righthaven has wrongly served, not served on time or not served defendants at all. As stated not long ago by observer Eric Goldman, "I don't know if it's their staff turnover, general incompetence or something else, but Righthaven has made a surprisingly high number of unforced errors for a company whose sole business is litigation."

Righthaven Used as a Political Weapon; A Private Tattle Tailer's Letter Badly Misfires

Righthaven Used as a Political Weapon

I received this email from one of the top lawyers defending Righthaven victims and it illustrates how low some will stoop to bring people down. He said this is a good example of how copyrights are being used to limit free speech, free enterprise and legitimate fair use and wanted me to share it.

Dear <lawyer redacted>
I am writing you this letter because there have been clear violations of Stephens Media property by two web sites. The owners of these two web sites knew that property was being violated but still allowed articles to be published. The web sites are as follows:
<websites redacted>
There have been threads posted by both sites that have criticized the actions of Righthaven and their policy of protecting copyright material. I would strongly urge that your law firm launch an immediate investigation and if warranted a lawsuit.
Thank you
A Concerned Citizen

See: Blogger Ken's post in full

A Little Backdrop

The first public tattle tailer to Righthaven was Las Vegas free-lance journalist Steve Friess who questioned in an August 23, 2010 blog post if Righthaven would sue Sharron Angle after finding parts of Review-Journal articles posted to her campaign website. In a separate post on the same day, Friess wrote about a conversation with Steve Gibson who said "I don't have time to review every case I receive a call about." Gibson then trumpeted the fact that his firm hasn't been "ideologically driven."

Only Righthaven knows how many private tattle tailers there have been, and of those, which were ideologically driven. One would imagine that there have been numerous "tattle tail" letters sent to Righthaven by ideological and business competitors. Possibly so numerous that some are now sending them to attorneys simply connected to Righthaven lawsuits at all, not even knowledgeable enough to know how badly they misfired -- sending it to an attorney defending a Righthaven victim!

Judge Mahan Dismisses Case Against Pahrump Life Blog; Offers Few Comments

Judge Tosses Another Righthaven Copyright Lawsuit

U.S. District Judge James Mahan dismissed a long-running suit alleging the Pahrump Life blog infringed on a Righthaven copyright when the blog posted without authorization a Las Vegas Review-Journal story.
Mahan ruled Righthaven lacked standing to sue under its copyright assignment for the lawsuit under its original lawsuit contract with R-J owner Stephens Media LLC. Three other federal judges in Nevada have dismissed Righthaven lawsuits for the same reason.

See: Related VEGAS INC article

Mahan oddly dismissed the case without prejudice (meaning it can be re-filed), stating: "I want people to have their day in court." Otherwise, he did not comment on any rhinoceros in the room issues.

Attorneys for Eiser File Supplemental Notice; Request Full Transcript of July 14 Hearing

On Friday, attorneys representing Dana Eiser filed a supplemental notice to her previous motion to dismiss. The new filing requests a full transcript of Judge Hunt's July 14 sanctions hearing and any written connection to it, as well as the consideration of a public statement recently penned by "Sherm." As readers recall, "bully-hater" Sherm vacated his roles as CEO of Stephens Media and publisher of the R-J in November 2010, but continued his column, which time and again gets him into trouble.

Yesterday, Frederick authored a blog post about Sharron Angle and media reaction to her unsuccessful Senate campaign. This post is attached as Exhibit 1.9 The Angle posting elicited comments, and Frederick responded to several of the comments. In one of those responses, Frederick referenced the Righthaven lawsuit against Sharron Angle:
Frederick’s remark, “I even sued her for lifting our material”, is a statement that is of substantial relevance to Defendant’s claims that the Righthaven-client relationship is a sham. It constitutes a public admission by Stephens Media’s then-CEO that he—and by extension, Stephens Media—was truly in control of the Righthaven litigation. It is ironic that several hours before Judge Hunt’s sanctions hearing, Sherman Frederick made a public statement confirming everything that Judge Hunt would find later that same day.

Attorneys for Eiser, who are now litigating against Righthaven in four U.S. courts, requested in the filing that the court withhold ruling on the cross motions to dismiss until Righthaven provides the court with materials from the July 14 hearing. As pointed out in the filing, Hunt not only issued a monetary sanction against Righthaven on that day, he also ordered Righthaven to provide specific materials to every court currently handing a Righthaven case, including items requested in Friday's filing.

South Carolina attorneys representing Dana Eiser include: Todd Kincannon of The Kincannon Firm, Bill Conner of Horger and Conner LLC and Thad Viers of Coastal Law LLC.

See: Eiser's Supplemental Notice Regarding Cross Motions to Dismiss
See: Eiser's Amended Response to Righthaven's Motion to Dismiss

Righthaven-Denver Post Agreement Made Public; Similar to Review-Journal Contract

UPDATE 07/09/11: A Saturday article by VEGAS INC sheds more light on the Righthaven-Denver Post contract. The Copyright Alliance Agreement between Righthaven LLC and MediaNews Group confirms that along with the Denver Post, other MediaNews newspapers are included in the contract for Righthaven's no-warning lawsuits. Thus far, no lawsuits have been filed over content from them:

• Contra Costa Times (CA)
• Long Beach Press-Telegram (CA)
• Los Angeles Daily News (CA)
• Oakland Tribune (CA)
• San Jose Mercury News (CA)
• Torrance Daily Breeze (CA)
• Pioneer Press (MN)
• El Paso Times (TX)
• Salt Lake Tribune (UT)

07/08/10
Righthaven/Denver Post Pact Made Public, Criticism Follows

A new round of criticism erupted Friday over the Righthaven copyright infringement lawsuits after the Las Vegas firm’s litigation contract with the Denver Post was made public.
The contract, obtained by attorneys in one of the Righthaven Colorado cases, is similar to Righthaven’s contract for Las Vegas Review-Journal lawsuits with R-J owner Stephens Media LLC in that the Denver Post receives a 50 percent cut of lawsuit revenue, minus costs.
And it has the same flaws as the Review-Journal contract in that it doesn’t give Righthaven standing to sue, defense attorneys said Friday.

See: Related VEGAS INC article

Attorney's at Randazza Legal Group made the contract public in a court filing Friday. Persons sued under the pact -- many of whom posted the TSA pat-down photo -- must be thrilled by today's news.

Amended Corporate Disclosure Statement Shows Fear and Potential Sham Agreement

Is the Righthaven-Denver Post Agreement a Sham?

Righthaven LLC filed an Amended Corporate Disclosure Statement today that shows that the Denver Post (aka MediaNews Group, Inc) had a stake in the litigation brought by Righthaven against persons and website operators who allegedly infringed against the Post. The filing reveals that though not threatened with sanctions by a Colorado judge (yet), Righthaven is afraid that it will be. The document also shows that the "agreement" between Righthaven & Company and MediaNews Group is apt to be very similar to the sham Strategic Alliance Agreement it struck with Stephens Media LLC.

See: Amended Corporate Disclosure Statement

Two federal Nevada judges have already determined that the Strategic Alliance Agreement is a sham and have begun dismissing cases governed by it. The countdown clock is ticking Righthaven...

Wired Interview Shows a Defiant Steve Gibson

Righthaven CEO Steve Gibson gave a very defiant response in a telephone interview given to WIRED. Gibson said “As of today, there should be no question whether Righthaven has standing,”. Oh has something changed? Is Gibson referring to the changes that Judge Hunt has already deemed "Cosmetic". Is Righthaven and Stephens Media again altering the agreement? If so it would show continued bad judgment on Stephens Media's part that has already subjected themselves to potentially massive liabilities over Righthaven.

Gibson also says they may refile suits that are either dismissed over standing or if any of those that have settled are vacated. Gibson is being defiant at a very bad time when a Federal Judge has ordered his company to explain why they should not be subject to sanctions. My guess is that these pronouncements by Gibson is not going to impress the judge.

Sorry Steve Gibson but you are no longer in a position to threaten people anymore. The Jig is up. Game Over. Checkmate. You lose!

Read Wired Story: Bloggers Mulling Legal Action Against Righthaven

Intellectual Property Law Expert Weighs In: 'Righthaven's Entire Enterprise is on the Ropes'

Eric Goldman, an intellectual property law expert and Righthaven critic, comments on the ruling by Chief U.S. District Judge Roger Hunt in a blog post today. Among other aspects, Goldman addresses the judge's severe criticisms of Righthaven, such as the rejection of Righthaven's basic substantive argument as "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful." Given the tenor of the opinion, Goldman writes, "it seems like a sanctions order is inevitable."

Righthaven Benchslapped in Ruling Saying It Lacks Standing--Righthaven v. Democratic Underground
--snip--
In addition to the adverse substantive ruling, the judge criticized Righthaven unusually harshly in this opinion. The "high"lights:

• the judge rejects Righthaven's basic substantive argument as "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful."
• the judge emphatically rejects Righthaven's attempt to argue that other judges had already upheld the copyright assignment, saying that "at best, this argument is disingenuous." Righthaven took the very aggressive position of citing one of the judge's earlier rulings back to him--and he seemed pretty angry that Righthaven sandbagged him in the prior ruling and then tried to estop him.
• the judge summarizes the overall ruling by saying "the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court."
• the judge then goes on to lambaste Righthaven for not identifying Stephens Media as an interested party in the lawsuit, calling that omission "brazen" and "egregious."

See: Article in full

Eric Goldman is an associate professor at California's Santa Clara University School of Law and director of its High Tech Law Institute.

No News Means No New Righthaven Victims; Week Wraps with Sparring and a Stall

Lawyers Sparring over Righthaven Copyright Lawsuit Issues

With litigants in the Righthaven newspaper copyright infringement lawsuit campaign waiting for key rulings on Righthaven’s standing to sue, attorneys continue pounding away at each other on that and other issues.
--snip--
Thirty-five Righthaven suits in Colorado over a Denver Post photo are on hold while the judge handling all of those cases reviews the standing issue while several of the Nevada federal judges hearing Righthaven cases are also considering arguments for and against dismissal focused on the standing issue.

See: Article in full

A hearing regarding the EFF's discovery effort of communications between Stephens Media and Righthaven and several others is set for next week.

Righthaven and Stephens Media Amend Strategic Alliance Agreement

In what amounts to an admission that the Strategic Alliance Agreement that governs the copyright assignments between Righthaven and Stephens Media was wholly inadequate and puts to even further question every lawsuit regarding those involving Stephens Media prior to Monday and could also implicate those regarding the Denver Post if Media News have a similar arrangement.

U.S District Judge Mahan, presiding over a case in Nevada, has given Righthaven notice they must show cause why at least one lawsuit should not be thrown out based on Righthaven's standing to sue. The fact that Righthaven and Stephens Media has seen fit to change their agreement severely weakens their argument and now opens up both entities to potentially massive liabilities.

See: Related VEGAS INC article

Righthaven Still Not Disclosing Stephens Media as an Interested Party

In the latest court filings regarding alleged copyright infringement of Las Vegas Review Journal articles Righthaven LLC of Nevada continues to omit Stephens Media as an interested party that stands to benifit from the law suits. With the release of the working agreement between Righthaven and Stephens Media it shows that Stephens Media has a 50/50 stake with Righthaven over the proceeds of any lawsuits. This omission can be used by Righthaven victims against Righthaven.

From one of Righthaven's court filings that lists interested parties:

1. Righthaven LLC, a Nevada limited-liability company;
2. SI Content Monitor LLC, an Arkansas limited-liability company; and
3. Net Sortie Systems, LLC, a Nevada limited-liability company.

Righthaven continues to defy the court by demanding remedies that our outside of copyright statute. A Nevada Federal Court has already ruled against this but Righthaven continues to do it and in fact upped the anti by also demanding the victims computers and related hardware and software.

Order the surrender to Righthaven of all hardware, software, electronic media and
domains, including the Domain used to store, disseminate and display the unauthorized versions of any and all copyrighted works as provided for under 17 U.S.C. § 505(b) and/or as authorized by Federal Rule of Civil Procedure 64;

17 U.S.C. § 505 mainly deals with attorney's fees and there is no section 505(b). The fact there is no section 505(b) and the fact that this has already been pointed out it is curious as to why Righthaven continues to site a section of law that does not exist?

Stephens Media and Righthaven Enlist Superstar Attorney to 'Fix Up the Mess'

Righthaven Engages ‘Superstar’ Attorney in Litigation Campaign

The owner of the Las Vegas Review-Journal and its copyright enforcement partner have enlisted one of the nation’s top copyright attorneys to help defend their litigation campaign.
Dale Cendali, a partner at the law firm Kirkland & Ellis LLP in New York, has been engaged by Stephens Media LLC, owner of the Review-Journal; and copyright enforcer Righthaven LLC, court records show.

See: Article in full

Billionaire Warren Stephens, has been moved to hire "bad-ass litigatrix," Dale Candali, who has represented J.K. Rowling and The Associated Press in copyright litigation, to protect his own bad-ass from a growing number of judges who are questioning the "sham" copyright assignment lawsuits.

Righthaven CEO Gibson Makes Striking Contradictions

In the latest Wired story Steve Gibson, in a phone interview, contradicts both the agreement with Stephens Media and Righthaven's own lawsuit court filings.

“We gave them exclusive licenses,” he said of Stephens Media of Las Vegas. “But that does not give them title. We own the underlying copyright.”

However in the court filings:

Righthaven holds the exclusive right to reproduce the Work.

Righthaven holds the exclusive right to prepare derivative works based upon the
Work.

Righthaven holds the exclusive right to distribute copies of the Work

And the agreement with Stephens Media:

It says Stephens Media shall retain “an exclusive license to exploit the Stephens Media assigned copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to exploit or participate in the receipt of royalties from the exploitation of the Stephens Media assigned copyrights other than the right to proceeds in association with a recovery.”

Read Entire WIRED story...

Recent Dismissal Filings Available for Active Righthaven Defendants - Download Now

With the help of AmericanJustice.org, we've received copies of the two dismissals filed after Friday's damning unveiling of the Strategic Alliance Agreement between Righthaven and Stephens Media. The agreement reveals what nearly all of us have long suspected -- the copyright assignments between the two entities are invalid. They are in fact, a total "sham."

Active defendants in cases involving Righthaven and Stephens Media -- not the Denver Post or MediaNews Group -- are encouraged to download each of the filings to closely review and to copy and paste at will.

Defendant Wayne Hoehn

• Document 1 (declaration) 
• Document 2 (exhibit) 
• Document 3 (motion to dismiss)

Defendants Vote for the Worst LLC, Nathan Palmer and David Della Terza

• Document 1 (declaration)
• Document 2 (exhibit)
• Document 3 (motion to dismiss)

Video: Righthaven Google Search Story 1.0

Who will make version 1.1?

Click here to create your own Google Search Story

Search terms used:

Who is Steve Gibson of Righthaven?

• Steve Gibson is the CEO of Righthaven LLC, a company "grubstaked" by Stephens Media, who owns the Las Vegas Review-Journal. The objective of Righthaven is to sue thousands of innocent copyright infringers who, unbeknownst to them, are "at times" technically committing copyright infringement by pasting portions of news articles into webpages and blogs. Each infraction is sueable by $75,000.

How many websites has Righthaven sued?

• Righthavenlawsuits.com is one group that is tracking the number of "shake down" copyright lawsuits that Righthaven files. As of October 4, 2010, 144 lawsuits have been filed with an estimated monetary gain of $140,000 by Righthaven. The website describes the estimation as "based on 35 cases closed as of September 30, 2010 and an educated guesstimate of an average of $4,000 settled per case."

What is a copyright troll?

• According to Wired.com (borrowing a page from patent trolls), Righthaven acquires the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. Typical Righthaven victims include 'Mom and Pop' websites that are cause related, such as, windaction.org. Righthaven's tactics are described as "parasitic bottom feeding."

Who is helping Righthaven defendants?

• The Electronic Frontier Foundation (EFF) -- a group that confronts cutting-edge issues defending free speech, privacy and innovation and champions the public interest in battles affecting digital rights -- has come out with guns blazing in opposition to Righthaven. View the EFF's counterclaim against Rigthaven. Learn more about copyright trolls and how the EFF is trying to combat them.

Avoid a Righthaven lawsuit.

• Righthavenvictims.blogspot.com has created a web page with important links regarding how to avoid a lawsuit. Activists, webmasters and users can help spread the word about Righthaven lawsuits by posting the site's banner ad, "Once you're sued, you're screwed" and linking back to the site's prevention page. Users are also encouraged to post an "I support Righthaven Victims" web button.

Who is Allegra Wong?

• Allegra Wong is a poet (See: A Pure Bead). Wong was sued by Righthaven after posting a Review-Journal story to her small website, City Felines Blog, that was written from the point of view of a cat. Wong represents all that is wrong with Righthaven and why this group must be stopped. On September 21, Wong reached a confidential settlement with Righthaven. (See: here and here for more).