Legal Issues

by Mike Masnick

Filed Under:
copyright, lawsuits

righthaven, stephens media

Judge Slams Righthaven's Legal Tactics, Unseals Document That May Undermine All Righthaven Cases

from the and-there's-that... dept

Late last week, there was a fascinating series of events in one key Righthaven lawsuit, which might lead to the collapse of most, if not all, of Righthaven's cases. If you don't recall, Righthaven is the somewhat sketchy company that was funded by Stephens Media (the publisher of the Las Vegas Review-Journal) for the purpose of effectively shaking down anyone who posted LVRJ content to the web. The way it supposedly worked was that Righthaven would scour the web, find copies of LVRJ content, and then Stephens would assign the copyright to Righthaven, so that Righthaven could sue on its own behalf. Righthaven always sued first. It never issued takedowns or made any indication that it was going to sue a particular site. Many sites settled, because Righthaven would accept a few thousand dollars as a settlement and that's cheaper than hiring a lawyer to fight the case. There were initially some questions over whether or not it was legal for Righthaven to sue when it obtained the copyright after the alleged infringement took place, but some of the early rulings in the court cases said that it was fine.

Last fall, the EFF jumped in on one of the cases -- against the website Democratic Underground -- and countersued both Righthaven and Stephens Media. Part of the EFF's argument was that the copyright assignment to Righthaven was a sham. It noted that even after the assignment, the LVRJ still showed the articles on its own site with "Copyright © Las Vegas Review-Journal."

A couple of very interesting things quickly happened. First, Righthaven and Stephens Media tried to drop the case saying it no longer wanted to sue Democratic Underground. It seemed clear that it didn't want to deal with what was coming next. Thankfully, the case is still ongoing, and recently news started spreading that the EFF, in the process of discovery, had come across a piece of evidence that would blow Righthaven out of the water... but that it couldn't reveal that evidence because it was under seal.

Well... no more. First up, the judge in the case unsealed the EFF's filing with a blistering critique against Righthaven. You really need to read the whole thing below, because it misses no opportunity to slam Righthaven, especially for Righthaven's attacks on the EFF lawyers, and a claim that the EFF was underhanded in how it filed the documents in question, because certain aspects weren't standard, but the Court points out that their only complaint appears to be that they didn't read the filing in question, and are now blaming others for that:
Righthaven and Stephens Media accuse Defendants of being underhanded by proposing a 14-day response period in the Court's Order permitting the filing under seal. There was nothing underhanded done at all. The proposed order was filed. The Court's Order also served on Righthaven and Stephens Media. Unless they confess to not reading, or ignoring, the Court's Order, their lament is not persuasive.

Righthaven and Stephens Media also accuse Defendants' counsel (who, they make a point of reminding the Court, are from out-of-town) of disingenuous gamemanship. They demand the Court issue an Order to Show Cause why Defendants should not be held in contempt for violating the Protective Order. It is this demand that is disingenuous. This Court entered the Protective Order. This Court certainly has the authority to modify its procedures as it sees fit, which it did in establishing provision for the filing of Supplemental Memorandum, because of the lateness of the disclosure by Righthaven and Stephens Media, and the potential imminent decision on the Motion to Dismiss and the Motion for Summary Judgment.
It appears the court was just warming up, because then the judge comes out with the following, beautiful, condemnation of Righthaven's legal filing practice:
The use of phrases, in the Motion to Strike, such as "underhanded," "a ruse," "blatantly ignored," "brazen attempt," "fumbling attempt," "purposefully muddle," and "Defendants' complaint reeks of hypocrisy," is a very unprofessional attempt to attack counsel rather than address the issues. There is an old adage in the law that, if the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table. It appears there is a lot of table pounding going on here.
Later, the court "confesses" that initially it was sympathetic to Righthaven's request that the new evidence not be unsealed, but then changed its mind in part due to the actions and statements of Righthaven. It really is a fantastic read, which you can see embedded below.

Of course, that's only half of this story. What was then unsealed in the document is even more damaging and may undermine most, if not all, of Righthaven's cases. However, this post is long enough, and that's a separate part of the story, so stay tuned for the very next post, in which we cover what's in the now unsealed document...

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  1. icon
    Brian Schroth (profile), 18 Apr 2011 @ 8:46am

    If the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table. And if the jury isn't on your side, you go to pound-me-in-the-ass prison.

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