Thursday, March 10, 2011 | 2:03 a.m.
Las Vegas copyright enforcement company Righthaven LLC is complaining that one of its litigation foes is needlessly running up legal costs that Righthaven may end up paying for.
Righthaven — the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post — since March 2010 has filed at least 249 lawsuits against website operators and message-board posters alleging material from those newspapers was re-posted online without authorization.
The lawsuits generally demand damages of $150,000 and forfeiture of the defendants’ website domain names.
Righthaven is regularly accused of coercing defendants into settling by agreeing to settlements under five figures — settlement amounts that are less than what it would cost to hire attorneys to fight the lawsuits.
Righthaven, however, says its no-warning lawsuits are necessary to deter extensive online infringements of newspaper stories, columns, editorials, photos and graphics.
In one of its more extensively-litigated cases, Righthaven sued the Democratic Underground last year after a message-board poster re-posted the first four paragraphs of a 34-paragraph Review-Journal story.
The Democratic Underground replied with a counterclaim against Righthaven and Stephens Media LLC, owner of the Review-Journal. A Stephens Media affiliate co-owns Righthaven.
After suffering a fair-use setback in another case involving a partial story post, Righthaven tried to drop its suit against the Democratic Underground, which would have resulted in a finding of “no infringement.”
But the Democratic Underground is pressing for far more in the case: That Righthaven pay its attorneys fees, that the story post be found to have been protected under the fair use doctrine and that Righthaven’s controversial website domain seizure demand be rejected by the court.
The latest dispute between Righthaven and the Democratic Underground emerged Friday, when Democratic Underground attorneys with the Electronic Frontier Foundation said new evidence had surfaced that would bolster their case.
This evidence hasn’t yet been made public, but involves charges by the Democratic Underground that Righthaven’s litigation campaign over Review-Journal stories involves “sham” copyright assignments from Stephens Media.
In a victory for the Democratic Underground, Chief U.S. District Judge for Nevada Roger Hunt on Tuesday allowed the Democratic Underground to supplement its pleadings with the new evidence.
That caused attorneys for Righthaven and Stephens Media to file motions Wednesday asking Hunt to either reconsider that decision or to give them three weeks to respond to the new Democratic Underground brief.
Righthaven said the Democratic Underground’s motion to use the new evidence amounts to “litigation overkill.”
“Defendants have elected to needlessly increase the burden on this court and its staff and to increase the litigation costs incurred by the parties by escalating the litigiousness of the action. Righthaven contends that this is precisely defendants’ desired effect in this case — to drive up their attorneys’ fees and costs in an attempt to burden Righthaven with an astronomical fee award,” Righthaven said in a filing.
While Democratic Underground attorneys have suggested this new evidence could undermine all the Righthaven lawsuits over Review-Journal stories, Righthaven attorneys on Wednesday said they view the evidence involving copyright transfers differently.
“Righthaven intends to fully expose the readily apparent flaws presented in defendants’ arguments that would completely eviscerate countless years of licensing and related transactions throughout the country. The lack of merit underlying defendants’ arguments aside, there is simply no basis to conclude the ‘newly discovered evidence’ demonstrates the objective unreasonableness of Righthaven’s claims,” said a filing by Righthaven attorney Shawn Mangano.
Democratic Underground attorneys have not yet responded to the charges they’re over-litigating the case. But in the past, they’ve said Righthaven should be responsible for their defense costs and those costs include seeking a fair-use declaration and the court voiding Righthaven’s domain name seizure demand.
“Defendants agree that this case should be over — indeed, it should never have started. But it should not end until Righthaven is called to account for the cost of the defense it provoked. This was a meritless lawsuit from the beginning, launched as part of a well-publicized business model in which Righthaven acquires interests in copyrights for the sole purpose of suing unsuspecting alleged infringers, and then seeks to leverage the cost of defending (and its own purported right to attorneys’ fees and domain name seizures) to coerce settlements. To allow Righthaven to avoid compensating those who have no choice but to defend would be unjust and unsupportable,” Electronic Frontier Foundation attorneys wrote in a December filing.
Separately, Righthaven filed three more lawsuits in federal court in Denver this week, all alleging the same Denver Post TSA pat-down photo was re-posted without authorization.
The latest website operators to be sued are:
• Tamer Mahrous, associated with the site thehappyhospitalist.blogspot.com.
• Donald Douglas, americanpowerblog.blogspot.com.
• Fugly Media LLC and an official there, Jeff Mezick; fugly.com.
Requests for comment were left with these three defendants.
The new suits lift to at least 45 the number of Righthaven lawsuits over the photo and to 249 the number of Righthaven suits overall.