Monday, Feb. 28, 2011 | 2 a.m.
One of the Righthaven LLC copyright infringement lawsuits over the Denver Post "TSA enhanced pat-down" photo has turned into a public relations debacle for Las Vegas-based Righthaven.
Defendant Brian D. Hill of the North Carolina-based website uswgo.com has been telling his story to The Associated Press, North Carolina and Virginia television stations and to Colorado media outlets.
He's often portrayed as a sympathetic victim of Righthaven with Hill, 20, saying in his court response he can't afford to pay for a lawyer or Righthaven's $6,000 settlement offer and that he has diabetes, hyperactive attention disorder and mild autism.
The lawsuit is reminiscent of earlier image problems for Righthaven when it sued Las Vegas Review-Journal source Anthony Curtis over a story he had made possible and when it sued unemployed Boston cat blogger Allegra Wong over a post on her nonprofit site.
In the Colorado case, look for Righthaven to quickly offer a more favorable settlement to Hill.
Otherwise, Righthaven is going to be dealing with attorney David Stevens Kerr of Santangelo Law Offices P.C. in Fort Collins, Colo., who has stepped up to defend Hill. Santangelo Law Offices specializes in intellectual property litigation, i.e. patent, trademark and copyright lawsuits.
The federal court in Colorado appears eager to get the Righthaven lawsuits there resolved quickly and efficiently.
There are 30 active suits there, all over the same Denver Post pat-down photo.
Each case has either been assigned to Senior Judge John L. Kane, or re-assigned from magistrate judges to Kane.
Kane is an interesting choice to handle the Righthaven cases.
A few months before Righthaven started filing lawsuits in Colorado, Kane expressed concern about something that regularly comes up in Righthaven lawsuits: the inability of many people being sued to afford legal representation.
"The increase in the cost of lawyers’ services has made representation by legal counsel nearly impossible for most Americans in many cases," Kane said in an address to the Faculty Of Federal Advocates in Denver, a group of attorneys dedicated to improving the quality of legal practice in the U.S. District Court for Colorado.
"People representing themselves, so-called pro se filings and defense appearances have increased at alarming rates. Reliable numbers are hard to find, but pro se litigants are no longer confined to the poor who have been unable to secure legal aid. My rough estimate for our court is that more than 25 percent of civil cases involve some pro se activity," he said.
In the Righthaven cases, many defendants have settled for a few thousand dollars after learning it could cost tens of thousands of dollars to employ a law firm to fight Righthaven.
Kane has ordered Righthaven to file a status report on each Righthaven case there and those are due today.
Colorado court records, in the meantime, show defendants in another of the TSA pat-down photo lawsuits, Michael L. Davis and Software Farm Inc., have agreed to settle with Righthaven under undisclosed terms.
But in another Colorado Righthaven case over the TSA photo, defendant Jason Chrystal in Baltimore is fighting back. Chrystal said in court papers he and his codefendants, associated with the website thoushaltnotsteel.com, are representing themselves as they're unemployed "with no assets to speak of."
"The picture was obtained from the website www.deadseriousnews.com, whom was thought to be the original producer of the picture in question, not from the Denver Post website," Chrystal said in his response. "No harm was caused by this infringement. The webpage displaying the work in question obtained 42 views by family and friends of the defendants."
"The work (photo) appeared in over 300 individual websites in search results and could not be properly traced to the rightful owner," Chrystal said.
"Righthaven is wasting taxpayer money to file a lawsuit against a not-for-profit website -- that is a humor blog read by family and friends of the defendants -- to try and make money," his filing said.
Court records indicate multiple Righthaven/Denver Post TSA pat-down photo lawsuits involve defendants saying they first found the photo on the deadseriousnews.com website.
The Denver Post TSA photo appeared to be posted on the Dead Serious News site on Nov. 21 and as of Sunday it was still displayed there, along with some off-color commentary suggesting passengers face arrest if they become sexually aroused during TSA enhanced pat-downs.
Records indicate that as of late last week, Dead Serious News had not been named as a defendant in any Righthaven lawsuits and it's unknown if Righthaven or the Denver Post have told Dead Serious News to remove the photo.
Separately, two law professors who have been critical of Righthaven expressed skepticism about threats by Righthaven defendant Dana Eiser to ask a federal judge in South Carolina to order Righthaven to refund settlement funds from prior lawsuits.
Attorneys for Eiser made the threat Sunday as they challenged Righthaven's standard lawsuit demand that Eiser forfeit her website domain name to Righthaven.
"I've never heard of anything like this, and I can't imagine how it would work. Eiser's heart is in the right place. I'd love to see Righthaven have to give back the settlement money, but I don't know of any legal way of forcing them to do that," said Eric Johnson, an associate professor of law at the University of North Dakota. "Eiser's attorneys don't cite any legal authority supporting their claim – at least in the motion.
"Courts perceive very strong public-policy reasons for not overturning or interfering with settlements, even when they seem very unfair," Johnson said.
Eric Goldman, associate professor at the Santa Clara University School of Law in California and director of the High Tech Law Institute there, expressed a similar sentiment.
"Eiser raises the issue as a violation of Federal Rule of Civil Procedure 11. Courts impose Rule 11 sanctions sparingly, so on that basis alone, the motion is not likely to prevail. Further, even if the judge decides to grant Rule 11 sanctions, it would be quite remarkable for the judge to impose a remedy that reaches beyond Eiser's own case. I don't think the odds of this motion's success are high," Goldman said.
But he added that the motion is not improper.
"Arguably, given that Righthaven has repeated its (domain seizure) demands for nearly a year despite repeated criticism and its own acknowledgements that the request has no textual support, perhaps a disgorgement of Righthaven's past settlements would satisfy the (rule's) standard," Goldman said.
For Goldman, Eiser's motion illustrates a bigger issue.
"I have repeatedly questioned Righthaven's profitability. Righthaven's model assumes lots of low-cost settlements. Instead, Righthaven has been running into buzzsaws of opposition on a surprising number of lawsuits -- perhaps far more than it initially modeled. All of that opposition jacks up Righthaven's costs. So even if this Rule 11 sanction motion is unsuccessful in court, it still shows the fragility of Righthaven's profitability. For every quick settlement Righthaven gets, it's also getting embroiled in time-consuming and costly battles," Goldman said.
Righthaven and several of its Nevada defendants, in the meantime, are waiting for federal judges to issue key rulings in some of these legal battles involving defendants such as the Democratic Underground, Thomas DiBiase, the Center for Intercultural Organizing and Bill Hyatt.
These involve motions for dismissal, a threat to dismiss, counterclaims and Righthaven's request for $150,000 in damages and a domain seizure against a defaulting defendant.