The courts themselves reacted vigorously against the legal shenanigans of a copyright-mill mass filing enterprise built on the IP rights of the Las Vegas Review-Journal. Nevada bar discipline authorities, however, didn’t: “disciplinary matters have a higher standard of proof than almost all civil matters in a judicial setting.” [Nicole Hyland, Orange County Register, earlier]
Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so,” the opinion begins.
Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.
Copyright troll tripped up:
A federal judge in Las Vegas today issued a potentially devastating ruling against copyright enforcer Righthaven LLC, finding it doesn’t have standing to sue over Las Vegas Review-Journal stories, that it has misled the court and threatening to impose sanctions against Righthaven. … [U.S. District Court Judge Roger] Hunt’s ruling today came in a 2010 Righthaven lawsuit against the Democratic Underground, operator of a big political website.
One of DU’s message board posters had reprinted without permission, but with link and credit, four paragraphs’ worth of an article under copyright to the Las Vegas Review-Journal, which is one of a number of newspapers with working agreements with RightHaven. And this part’s interesting:
In their counterclaim [which Judge Hunt allowed to proceed], attorneys for the Electronic Frontier Foundation (EFF), a digital free speech group based in San Francisco, hit Righthaven and Stephens Media with allegations of barratry (the alleged improper incitement of litigation); and champerty (an allegedly improper relationship between one funding and one pursuing a lawsuit)….
Some fans of entrepreneurial lawyering in the academy and elsewhere have sought to portray rules against barratry and champerty as wrongheaded survivals of a much older approach to the role of the legal profession. But it looks as if EFF — no one’s idea of a Blackstone-reading antiquarian club — just put those rules to powerful use. [Las Vegas Sun]
P.S. Bloggers who settled wonder: can we get our money back?
Having defeated a Righthaven suit filed against the political site Democratic Underground, lawyers from the Electronic Frontier Foundation now would like the court to award attorneys’ fees. [Kravets, Wired “Threat Level”] Among the claims advanced by EFF in that case were that Righthaven had engaged in barratry and champerty, concepts familiar to many Overlawyered readers if in desuetude in some sectors of the legal world these days. It had also pointed out that some of the newspapers facilitating the suits themselves, or websites they operate, appear to engage in or encourage practices that might be considered wrongful under Righthaven’s theories, such as “cutting and pasting” potentially copyrighted text.
Separately, Groklaw has analyzed what happened in one sample case. Of the furor aroused by the lawsuits, “I think the benefits are worth the negative publicity,” said one executive with the Las Vegas Review-Journal’s owner at a September panel.
The entrepreneurial copyright litigation firm has also now signed up the Denver Post as a new affiliate, and has made a splash by suing the owner of the Drudge Report over its use of a photo allegedly swiped from the Colorado newspaper, an offense (if proven) presumably not as readily defended under “fair use” doctrine as some others over which it has sued.
The company says it will narrow its filing of infringement suits following a Nevada judge’s ruling that a real estate firm was within acceptable “fair use” limits in handling a copyrighted newspaper story of which it had reprinted the first eight sentences. “Righthaven does not anticipate filing any future lawsuits founded upon infringements of less than 75% of a copyrighted work, regardless of the outcome of the instant litigation,” it said in a court filing. [David Kravets/Wired “Threat Level”, Las Vegas Sun]
RightHaven, the copyright mill which sues unauthorized online reprinters of Las Vegas Review-Journal material without bothering with such courtesies as notice or takedown requests, has now sued more than 100 blogs, online discussion sites, small businesses, community groups, and other defendants (sample: an EMT blog.) Among newer targets is Nevada GOP Senate hopeful Sharron Angle, whose candidacy the paper has endorsed [Politics Daily]. The Las Vegas paper, which has been identified in the past with a conservative editorial line and even sometimes with the cause of lawsuit reform, is apparently of the opinion that suing bloggers and other online mentioners will get it linked to more often [TechDirt]. A site named RightHavenLawsuits.com has compiled what it intends to be comprehensive lists of the lawsuits and of news and opinion coverage of the phenomenon.
Other recent developments: a regional newspaper chain of which the Arkansas Democrat-Gazette is the best-known unit has apparently signed on as a second major client with RightHaven [“We’re up to our armpits in Righthaven defendants,” a referral coordinator for the Electronic Frontier Foundation says; Wired] TechDirt looks into the question of why the company demands the domain names of groups it sues. Ways of protecting oneself before the fact are bruited at Instapundit, Daily Pundit, and Las Vegas Trademark Attorney. More commentary: Legal Ethics Forum (on a grievance filed with the Nevada state bar against RightHaven CEO Steven Gibson), No Lawyers – Only Guns and Money, Las Vegas Sun. A few weeks ago at Cato at Liberty I compared the RightHaven business model to that of ADA filing mills, patent trolls, and the California subculture of entrepreneurial lawsuits against small businesses and school districts over paperwork violations.
- The law should not accord the state of Georgia a copyright over its code of law, even if the code has annotations [Trevor Burrus and Sam Spiegelman on Cato amicus certiorari brief in State of Georgia v. Public.Resource.Org, earlier here and here] And a transcript of today’s oral argument before the Supreme Court;
- Update: federal judge Kaplan imposes sanctions on alleged “copyright troll” Richard Liebowitz, further complications ensue [Eugene Volokh, more, ABA Journal, earlier]
- How Coca-Cola responds to flavor suggestions from fans on Twitter [Mike Masnick]
- “California Man Gets Sued After Trying To Trademark Bully A Theme Park’ [Timothy Geigner, TechDirt]
- “Like Righthaven before it, the Higbee firm has been taking advantage of hosts who failed to take the proper registration steps to perfect their DMCA immunity from copyright claims” [Paul Alan Levy and more, earlier here and here] And yet more;
- “A root beer start-up, an energy drink company and an ugly trademark battle” [Andrew Yarrow, Washington Post/Keene Sentinel]