Ars Technica freelancer Eriq Gardner was recently sued over a photo that appeared in a piece he wrote for us last year. The flimsy lawsuit was quickly dismissed, but the company behind it lives on—and has sued 50+ people in Colorado for their use of the same photo. Now, the federal judge overseeing all these cases has made it clear that he sees through the company's "lawsuit as revenue generation" strategy, and that he's not interested in enabling it. Righthaven is already backing down.
The company at issue here is a Las Vegas litigation firm that finds allegedly infringing newspaper posts and images online, contracts with the newspaper in question for control of the the copyright, and files federal lawsuits against its targets. Since its inception, Righthaven has made the obviously outrageous demand that the entire domain name for the site in question be locked and then turned over to the company. This has never happened, but the threat of massive damages and of losing one's Web address seem calculated to force people into settlements of a few thousand dollars.
Recently, Righthaven has filed dozens of suits in Colorado over a Denver Post photo of a TSA airport security pat-down. One of those suits targeted Brian Hill, a 20-year-old North Carolina man who ran an "alternative news" site. Hill is a "mentally and physically disabled young man who has been unwittingly swept up in this unforgiving 'business model,'" said his lawyer in a court filing. Hill has "autism, as well as a rare and severe form of diabetes known as brittle type-1 diabetes, Attention Deficit Disorder, and hyperactivity." He is cared for at home by his mother.
Judge John Kane, who is overseeing all the Colorado Righthaven suits, last week weighed in on Hill's case. Righthaven asked for a three-week extension of time to file a response in the case, hoping to settle with Hill and to avoid drafting additional court briefs in the case. Such extension requests are generally routine, but this one was opposed by Hill's lawyer, David Kerr, who absolutely blasted Righthaven in his lengthy filing (PDF).
"Neither The Denver Post nor Righthaven attempted to mitigate any damages by simply sending a cease and desist letter," wrote Kerr, "nor any other request to discontinue the alleged infringement, prior to initiating this action. Instead, Righthaven has brought this lawsuit (and apparently 251 others) against alleged infringers, further exacerbating the Court’s overloaded docket. Righthaven’s motivation for avoiding the simple act of requesting that Mr. Hill cease and desist is simple, it is using these lawsuits as a source of revenue. Such abuse of legal process should be rejected."
The judge concurred that no extension of time would be given, and he appeared sympathetic to Kerr's argument against using federal courts in this way.
"Whether or not this case settles is not my primary concern," wrote the judge last week. "Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."
It's a mere procedural order, but coming from the judge who will handle Righthaven's other cases in the state, it's clear that Judge Kane has no interest in simply making things quick and cheap for Righthaven. And with IP lawyers like Kerr lined up and ready to litigate on everything from the appropriateness of the venue to questions about whether Righthaven even has the right to bring such suits, these cases could become a real drain on Righthaven resources.
This is the way the case ends: not with a bang but a whimper
In a move that proved the judge's point, Righthaven yesterday dismissed the case against Hill. Though the case was moving forward, Righthaven made clear it wasn't actually interested in litigating the suit; it wanted to settle. "Righthaven is no longer willing to engage in settlement discussions over trivial issues while the Defendant and his counsel seek to extend this action for publicity purposes," said the company. With settlement not a possibility, the company now just wants the suit to go away.
But other Righthaven targets should still tread carefully. "While the Defendant may believe the Notice of Dismissal evidences his authorization to misappropriate copyright protected material in the course of his Internet-related conduct, he can continue to do so at his own peril," wrote Righthaven attorneys. "Others observing these proceedings should so likewise heed this advice because this Notice of Dismissal in no way exonerates any other defendant in any other Righthaven action for stealing copyright protected material and republishing such material without consent."
Tough words—but defense lawyers will conclude that they need only to raise a little publicity, fight Righthaven in court, and watch as the snarling dog backs away with a whimper.
As for Kerr, he's not ready to let Righthaven off the hook so easily. "While we are pleased that Brian has been dismissed from the case, there are several outstanding issues that we believe still need to be addressed with the Court," he told Ars. "Quite frankly, we were anticipating Righthaven's response to our motion; however, we will take time to digest this development and react accordingly.
"I will not speculate as to why Righthaven chose to drop Brian's case instead of answering his motion. I believe that facts speak for themselves and each person can draw their own conclusion."
reader comments
54