Predatory Copyright Troll Firm Righthaven Loses Big: Ordered to pay $120,000

[aroundtheworld]

Righthaven ordered to pay nearly $120,000 in attorney fees, court costs - Wednesday, Oct. 26, 2011 | 6:44 p.m. - Las Vegas Sun

Originally Posted by the Las Vegas Sun

Newspaper copyright infringement lawsuit filer Righthaven LLC of Las Vegas was hit Wednesday with an order to pay $119,488 in attorney's fees and costs in its failed lawsuit against former federal prosecutor Thomas DiBiase.

This was by far the largest fee award against Righthaven, but likely will be dwarfed by an upcoming award in Righthaven's failed suit against the Democratic Underground. Before Wednesday the largest fee award against Righthaven was for $34,045 — an amount Righthaven says it's having trouble paying or even posting a bond to cover.

Mass lawsuits -- and the (extortionary?) threats thereof -- aimed against alleged copyright infringers have been discussed here previously, and have even been suggested as a new business model for copyright holders, but the method may not look so promising after firm Righthaven failed to demonstrate the standing necessary to bring suit on behalf of copyrights managed by the Las Vegas Review-Journal.

[chrisso]

I don't think anyone here has suggested private companies should chase after 'alleged' pirates, especially not in a money making enterprise.
The anti pirates want to see some legal consequences brought to bear on blatant offenders. But all above board and with due legal process.

[aroundtheworld]

Originally Posted by chrisso

I don't think anyone here has suggested private companies should chase after 'alleged' pirates, especially not in a money making enterprise.

I don't think you noticed the post I linked where it was suggested that private companies chase after alleged copyright-infringers explicitly as a money-making enterprise.

[rack gear]

This is why we have courts. I personally thought it was a good idea if it worked. I advised my clients against it, as it was controversial and untested, although I was philosophically in favor of it.

It was fun while it lasted, and it may not be over yet. Also, the stated case is an extreme example and there are I believe other companies still pursing this course of action, and being successful in doing so.

So it ain't over yet.

My thought was if someone you know get's popped, they'll tell people, and as the word spreads of real world consequences, behaviors will change.

I know people who got the first round of comcast letters and that was enough for them to stop "sharing".

[chrisso]

Originally Posted by aroundtheworld

I don't think you noticed the post I linked where it was suggested that private companies chase after alleged copyright-infringers explicitly as a money-making enterprise.

I saw one post vaguely supporting the idea, the rest were just reporting it as a new phenomenon.
I didn't see a single person suggest it as a great idea.

[aroundtheworld]

Originally Posted by aroundtheworld

Mass lawsuits ... have even been suggested as a new business model for copyright holders,

Originally Posted by chrisso

I don't think anyone here has suggested private companies should chase after 'alleged' pirates, especially not in a money making enterprise.

Originally Posted by aroundtheworld

I don't think you noticed the post I linked where it was suggested that private companies chase after alleged copyright-infringers explicitly as a money-making enterprise.

Originally Posted by chrisso

I saw one post vaguely supporting the idea, the rest were just reporting it as a new phenomenon.
I didn't see a single person suggest it as a great idea.

I'd prefer to avoid letting you drag me down into pointless bickering, chrisso -- especially because it is entirely irrelevant to the actual topic -- but I feel compelled to respond in this situation due to the remarkable caprice with which you bring this argument.

I never claimed that mass-lawsuit-settlement-fishing was heralded as the Coming of the Music Industry's Savior; I merely wrote that it was suggested as a potential new business model. Which it demonstrably was. You are utterly in the wrong of this pointless derailment and there is no interpretation through which it can reasonably be claimed otherwise. Let's just agree to drop it here; this is not a worthwhile track of discussion for anyone.

More on topic,

Originally Posted by rack gear

This is why we have courts. I personally thought it was a good idea if it worked. I advised my clients against it, as it was controversial and untested, although I was philosophically in favor of it.

It was fun while it lasted, and it may not be over yet. Also, the stated case is an extreme example and there are I believe other companies still pursing this course of action, and being successful in doing so.

I agree with your assessment that this will not be the last we hear of mass-settlement dragnet-litigation. There are a handful of other cases winding their way through various court systems. I haven't actually heard of any actual courtroom successes related to them, though, so I would be interested if you have any information on the subject. Granted -- as you point out -- the dragnet-style settlement solicitation approach could be seen as a deterrent and so it could be argued that courtroom success isn't necessarily the only barometer.

[aroundtheworld]

A minor update to point out that the US Marshal Service has been ordered to claim $63,000 in assets from Righthaven.

Originally Posted by Vegas Inc

Las Vegas copyright infringement lawsuit filer Righthaven LLC’s financial problems grew Tuesday when the federal court in Las Vegas commanded the U.S. Marshals Service to seize more than $63,000 in Righthaven assets to satisfy a creditor’s judgment and costs.

[rack gear]

Originally Posted by aroundtheworld

A minor update to point out that the US Marshal Service has been ordered to claim $63,000 in assets from Righthaven.

again, that's why we have courts, when are the US Marshal Service going to collect from Tenebaum and Thomas?

[John Eppstein]

Originally Posted by aroundtheworld

I don't think you noticed the post I linked where it was suggested that private companies chase after alleged copyright-infringers explicitly as a money-making enterprise.

The cases referred to this those links are a very different matter than the type of trolling that Righthaven engaged in if you bother to actually read the facts of the Righthaven cases. Righthaven used a different and nonstandard model of highly questionable legality rather than simply acting as attorneys for content owners.

There's nothing wrong with a law firm specializing in one particular area of law. That's a very different thing that Righthaven style trolling.

[John Eppstein]

Originally Posted by rack gear

again, that's why we have courts, when are the US Marshal Service going to collect from Tenebaum and Thomas?

[terryhart]

I strongly agree with copyright holders right to pursue infringers in court. I don't support copyright holders suing individual infringers if the motive is to garner quick settlements in a money-making scheme.

That said, there have been a lot of "copyright troll" court decisions that have gone in favor of the "copyright trolls" lately that haven't been reported online. I just find that interesting.

[Don Hills]

Originally Posted by terryhart

... That said, there have been a lot of "copyright troll" court decisions that have gone in favor of the "copyright trolls" lately that haven't been reported online. I just find that interesting.

Not interesting enough to report them online, though?

[John Eppstein]

The thing about Righthaven is that rather than simply functio9n as a law firm representing copyright owner in court they entered into supuious contracts with the copyright owners enploying a bogus "legal fiction" granting Righthaven "rights" as "owners" of the copyrights themselves solely for the purpose of bringing legal proceedings against infringers (but not for other purposes). This premise is what was thrown out by the courts (in addition to the numerous violations of fair use provisions, etc.) and has invalidated all of Righthaven's suits, while at the same time raising the possibility that the copyrights in question might be reassigned to the very litigants Righthaven was attempting to sue, as the courts have ruled that you can't be a partial owner of something only for the purpose of suing other entities over its use. Either you own it or you don't, and if you own it then it's an asset that can be seized to cover a debt.

This is a very different matter than simply being an attorney representing a client and enters into the realm of true trolling - accumulating IP for no other purpose than to use it for purposes of litigation. AFAIK no other company has attempted to troll copyrights in the same way that patent trolls troll patents. The other firms doing copyright litigation are simply legal specialists.

I think the applicable phrase here would be "Too smart for your own good."

One wonders what implications this case might have for patent trolls.

[John Eppstein]

Originally Posted by Don Hills

Not interesting enough to report them online, though?

Why bother? They're not really of any significance in affecting case law. Do newspapers report on every burglary conviction?

[Don Hills]

Originally Posted by John Eppstein

Why bother? They're not really of any significance in affecting case law. Do newspapers report on every burglary conviction?

If they are of no significance, why mention them as if they are? Why should copyright trolls be more exempt from public scrutiny than any other fraudster / scammer?

[John Eppstein]

Originally Posted by Don Hills

If they are of no significance, why mention them as if they are? Why should copyright trolls be more exempt from public scrutiny than any other fraudster / scammer?

Once again, these cases are not being brought by "trolls", they are being brought by legitimate legal firms representing copyright holders.

To date the only real copyright troll - in the sense that the patent troll firms are patent trolls - is Righthaven.

You don't appear to understand the meaning of the term "troll" in this application.

A "troll" is a firm that buys up IP with no other intention than sitting on it and suing any other entity that attempts to use it or anything similar.

These specialist legal firms are not buying up anything, they are simply acting as legal counsel for rights holders who are using their IP in the course of a legitimate business. It's no different than an attorney specializing in divorce loaw ot music business law.

It's not "trolling".

[Don Hills]

I understand perfectly. In turn, I trust you will understand why I choose to ignore your interpretation and wait for Terry to explain what he meant. I doubt he would use the term "copyright trolls" to refer to legitimate copyright enforcement activities.

[chrisso]

Originally Posted by Don Hills

I doubt he would use the term "copyright trolls" to refer to legitimate copyright enforcement activities.

He took the line (in quotes) from the topic title.
It seemed to me he was saying legitimate copyright enforcement activities had occurred, but had not been widely reported on the net. NOt really surprising as the net is dominated by tech positive, copyright negative loud mouths.
The ABC Australia tech blog has published three opinion pieces sympathetic to piracy this year, and not one putting the opposing view.

[Don Hills]

I understand perfectly. In turn, I trust you will understand why I choose to ignore your interpretation and wait for Terry to explain what he meant. I doubt he would use the term "copyright trolls" to refer to legitimate copyright enforcement activities.

[terryhart]

Originally Posted by John Eppstein

Once again, these cases are not being brought by "trolls", they are being brought by legitimate legal firms representing copyright holders.

To date the only real copyright troll - in the sense that the patent troll firms are patent trolls - is Righthaven.

You don't appear to understand the meaning of the term "troll" in this application.

A "troll" is a firm that buys up IP with no other intention than sitting on it and suing any other entity that attempts to use it or anything similar.

These specialist legal firms are not buying up anything, they are simply acting as legal counsel for rights holders who are using their IP in the course of a legitimate business. It's no different than an attorney specializing in divorce loaw ot music business law.

It's not "trolling".

Originally Posted by chrisso

He took the line (in quotes) from the topic title.
It seemed to me he was saying legitimate copyright enforcement activities had occurred, but had not been widely reported on the net. NOt really surprising as the net is dominated by tech positive, copyright negative loud mouths.
The ABC Australia tech blog has published three opinion pieces sympathetic to piracy this year, and not one putting the opposing view.

Originally Posted by Don Hills

I understand perfectly. In turn, I trust you will understand why I choose to ignore your interpretation and wait for Terry to explain what he meant. I doubt he would use the term "copyright trolls" to refer to legitimate copyright enforcement activities.

I believe John offers an accurate definition of a true IP troll: one who acquires IP at some point downstream (as opposed to one who acquires IP through bankrolling the creation or production of the IP) with the primary intent to profit off that IP through the threat of litigation. A famous 2006 Slate article suggests that Bridgeport Music is one such company. From what I've read, it appears that Righthaven also falls in this camp.

I personally wouldn't apply the label "troll" to other companies that have been labelled as such by the EFF and others ( Fight Copyright Trolls ). These appear to be mostly independent filmmakers and porn producers suing individuals for P2P infringement. As I said earlier, I don't necessarily agree with their tactics if the intent is to strong-arm people into quick settlements. From a broader perspective, they certainly aren't doing any PR favors for creators at a time when it's already difficult to enforce copyright online. But most of these lawsuits appear to be initiated by those closely related to the production of the works at issue.

As for the court opinions that haven't gotten much attention. Most of these are procedural, involving issues of jurisdiction or joinder. The tech-friendly blogs are quick to report when courts are skeptical of the lawsuits and sever defendants or quash subpoenas, but not so quick when courts allow the claims to move forward. Readers of these blogs get the implication that these suits are universally perceived as bad and wrong.

There's one in particular that I have yet to see reported on that seems even more surprising. Achte/Nuente v. Palmer - a federal court in Florida on October 6th was faced with a request for default judgment against a defendant accused of downloading Uwe Boll's "Far Cry". The court granted default judgment with statutory damages of $30,000 (plus attorney fees).

Remember, the Tenenbaum and Thomas-Rasset awards were declared unconstitutional, for being obviously unreasonable according to the judges, after jury trials that resulted in damages of $22,500/work and $62,500/work respectively. The judge in Thomas-Rasset said that for P2P cases, the Constitution only allows a maximum award of $2,250/work. Here, the judge awarded damages of $30,000/work based solely on the plaintiff's complaint (i.e., no jury trial).

Like I said, I just find the result interesting, considering the other cases, and the fact that I haven't seen it reported anywhere else makes it more interesting.

[John Eppstein]

Originally Posted by terryhart

Remember, the Tenenbaum and Thomas-Rasset awards were declared unconstitutional, for being obviously unreasonable according to the judges, after jury trials that resulted in damages of $22,500/work and $62,500/work respectively. The judge in Thomas-Rasset said that for P2P cases, the Constitution only allows a maximum award of $2,250/work. Here, the judge awarded damages of $30,000/work based solely on the plaintiff's complaint (i.e., no jury trial).

Terry, isn't it true that only The Supreme Court can actually declare something unconstitutional, and that a lower court can only offer an opinion, which must in turn work its way up the ladder in order for a standing precedent to be set? It was my understanding that the Tenenbaum and Thomas-Rasset cases do not meet this standard and are, in fact, still pending. AFAIK Thomas-Rasset was referred to a jury trial which again entered a high ticket decision against her.

And didn't the judge in Thomas-Rasset pretty much just pull that $2,250 figure out of his ass without any actual basis in statute?

[terryhart]

Originally Posted by John Eppstein

Terry, isn't it true that only The Supreme Court can actually declare something unconstitutional, and that a lower court can only offer an opinion, which must in turn work its way up the ladder in order for a standing precedent to be set? It was my understanding that the Tenenbaum and Thomas-Rasset cases do not meet this standard and are, in fact, still pending. AFAIK Thomas-Rasset was referred to a jury trial which again entered a high ticket decision against her.

And didn't the judge in Thomas-Rasset pretty much just pull that $2,250 figure out of his ass without any actual basis in statute?

Yeah, pretty much.

From a legal standpoint, any court can interpret a law as unconstitutional, but the effect depends on the level of the court. A District Court's decision that a law is unconstitutional isn't binding on any other court -- even the same District Court in a future case. An appeals court -- the Circuit Courts -- decision is binding only on the District Courts within that Circuit. Supreme Court decisions are binding on all District and Circuit Courts.

From a practical standpoint, that usually means only Supreme Court decisions that a law is unconstitutional have any weight. If any lower court declares a law unconstitutional, that usually means the US will intervene as a party, and the US will put its weight behind fighting it up to the Supreme Court -- and the Supreme Court is more likely to hear a case where there's a question about whether a law is unconstitutional. No one likes a situation where a federal law is valid except in Kentucky and Ohio, for example.

And yeah, the figure the judge picked was out of thin air. The reasoning was that the amount was three times the minimum statutory damages, and other laws have treble damage provisions for willful violations. But I think that reasoning is specious. It's not in the statute, copyright statutory damages already have provisions for higher damages for willful violations -- ie, Congress expressly said here's what a jury can award for violations, and here's what it can award for willful violations.

Bottom line, I don't think there's any constitutional argument for limits on statutory damages, and "it's unconstitutional because I don't like what Congress did" on its own is not a convincing argument.

[Don Hills]

Thanks for going into detail, Terry. Definitely a discussion to keep a pointer to.

[Muser]

To be honest, if anyone despises these Predatory Copyright Trolls being released on the public, then it might be good to think about who to finger for being responsible for it..

at the end of the day, the players who facilitate it are by far the most culpable.

I'm not sure who the OP is pointing the finger at. but this is exactly why people need to get an angle on the problem.. otherwise we will eventually get lots of interests ( like these ) running amok.

[John Eppstein]

Originally Posted by Muser

To be honest, if anyone despises these Predatory Copyright Trolls being released on the public, then it might be good to think about who to finger for being responsible for it..

at the end of the day, the players who facilitate it are by far the most culpable.

I'm not sure who the OP is pointing the finger at. but this is exactly why people need to get an angle on the problem.. otherwise we will eventually get lots of interests ( like these ) running amok.

Did you actually read the thread and included links?

Righthaven had a unique and peculiar trolling scam going that is in no possible way germane to the music area; it was specific to print publishing of news articles.

Their bright idea was that they would "purchase" the "rights" to news articles from a given publisher only for the purpose of filing infringement suits as the alleged copyright owner and would split the proceeds of the suits with the publisher.

This was an attempt to take advantage of a "loophole" in copyright law that didn't actually exist - you can't sell (or assign, or give away) just the right to sue. It did, however, open up a huge potential liability for the publisher because if the rights were property of Righthaven then they could be attached to pay for legal settlements or auctioned off in bankruptcy proceeding. OOPS!