Copyright Troll Complains of Defendant's Legal Fees

Hugh Pickens writes "Copyright enforcement company Righthaven, accused of coercing defendants into settling with threats of damages of $150,000 and forfeiture of the defendants' website domain names, is complaining that one of its litigation foes is needlessly running up legal costs that Righthaven may end up having to pay. 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. 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 Righthaven to pay its attorney's fees and says new evidence had surfaced that would bolster their case. '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,' say attorneys for the EFF. 'To allow Righthaven to avoid compensating those who have no choice but to defend would be unjust and unsupportable.' In related news, Righthaven has filed five more lawsuits, bringing their total since March 2010 to 246 lawsuits."

Comments

Set up the precedent

[Sonny Yatsen]

I know a lot of people wind up settling with Righthaven, but I fervently wish more people are taking it straight to Righthaven like the EFF and the Democratic Underground and set up an adverse precedent so every single time they bring another stupid case, they get smacked back down.

Re:Set up the precedent

[Sonny Yatsen]

It's kind of rich that Righthaven is complaining that the defendant isn't acting in good faith considering the conduct of Righthaven in pulling these completely BS lawsuits.

Re:Set up the precedent

[Anonymous Coward]

..I fervently wish more people are taking it straight to Righthaven like the EFF and the Democratic Underground and set up an adverse precedent so every single time they bring another stupid case, they get smacked back down.

I wish someone here could explain in detail why this isn't feasible for most people. From what I've told, folks face years of litigation, paid out of their own pocket and with no hope of ever paying for it - and many lawyers won't even take the case because they know they'll never be paid.

It's one of those things where you have no choice but to go with the cheapest way out.

Re:Set up the precedent

[devxo]

They're not all BS lawsuits. For example they also sued many search engine spamming websites that were just scraping content from other sites and trying to make money with other peoples content. Righthaven should just concentrate on those ones.

Re:Set up the precedent

[ginbot462]

Those are just for PR. Do the "right" thing, don't give them good PR.

Re:Set up the precedent

[Chrisq]

They're not all BS lawsuits. For example they also sued many search engine spamming websites that were just scraping content from other sites and trying to make money with other peoples content. Righthaven should just concentrate on those ones.

And the Nazis executed some nasty murderers

Re:Set up the precedent

[Compaqt]

>For example they also sued many search engine spamming websites that were just scraping content from other sites and trying to make money with other peoples content

Scrapers like Google that store and offer up other peoples content?

Re:Set up the precedent

[Anonymous Coward]

Like Google with its cache, image search, etc.?

Re:Set up the precedent

[Jason Levine]

The problem is (and has been for a while now) that, if you are sued, it takes a lot of time and money to defend yourself. Best case scenario: You win, get paid attorney fees and are only out the time that you spent in your defense. Worst case: You lose and have to pay the full, bankrupting-for-life fine plus your attorney's fees. Middle-of-the-road case: You win, but don't get attorney's fees paid and thus are out time and money.

Now you have all those possibilities going through your head when you're offered a $3,000 settlement. $3K and it all goes away. Sure, it's a lot of money, but you'd spend more in legal fees (with only a small chance at getting it back). Whether you were guilty or innocent, there would be a great temptation to just pay the settlement fee and make it all go away. Of course, this is what Righthaven (and the RIAA) are hoping for. They don't want to actually fight court cases (where they might lose and have precedents set against them). They just want to milk some easy money from copyright infringement allegations.

Re:Set up the precedent

[Phreakiture]

It is my perception that you are being deliberately daft. No, we are talking about the sort of thing that shows up in certain search results, sometimes outnumbering the content you need by as much as 10:1, making it difficult to find what you are legitimately looking for.

Re:Set up the precedent

[MysteriousPreacher]

There are probably a few things that separate Google's cache and image search from the typical search engine spammer. Have a think about it.

Re:Set up the precedent

[Americium]

We don't have 'loser pays' in the USA, so this isn't going to be a precedent. Until the law is changed, we will continue to have millions of frivolous law suits precisely because it's cheaper to settle than defend, regardless of if you are innocent or not.

Re:Set up the precedent

[Anonymous Coward]

We don't have 'loser pays' in the USA, so (...)

why not?

Re:Set up the precedent

[tepples]

Scrapers like Google that store and offer up other peoples content?

Google has an far easier defense under OCILLA than most scrapers have. For one thing, Google swiftly responds to notices of alleged infringement. (In fact, I've caught a Google division responding too slowly to OCILLA counter-notices, but that's beside the point.) For another, as far as I know, Google doesn't duplicate the same scraped text under multiple brands on multiple domains in an attempt to manipulate other search engines' results.

Re:Set up the precedent

[Compaqt]

Well, yeah, there are those sites. Although, some that are just links to other sites are still useful to people, like Digg, Reddit, ./. Is the difference between them and Digg that they're just not big enough yet?

But there's still the aspect that Google reserves for itself and friends the moral right to behavior that it condemns in others (or penalizes them for it). The copyright content thing is one. Another is cloaking: showing different content to search engines vs. normal browsers. Except if you're a big company like NYTimes, or WSJ: in that case, you won't get banned from Google for showing content to Google, and a wall to users.

Re:Set up the precedent

[C_amiga_fan]

On the other hand, it can sometimes work out. The man who was sued because he had created an information website about a New mall coming to his area refused to back down. It eventually rose to the level of the Supreme Court who declared info and criticism websites (like ebaysucks.com) were protected by free speech.

His out-of-pocket costs were ~$5000 and ordered to be paid by the Mall lawyers.

Re:Set up the precedent

[RobertLTux]

what google should do

when the spider runs a site it should notice how many links are A above a certain complexity B link offsite C link within the site

then run the math (A+B)/C and then apply that to the ranking (so that in a search with 2,000,000 hits these link farms land up on the bottom)

i would also rig the results so that smaller sites with a narrow focus get pushed above mega sites that are keyworded to EVERYTHING

Re:Set up the precedent

[UnknowingFool]

It's not a rigid system but in some circumstances the loser does have to pay. I think in cases like this where the defendant can show that the lawsuit should not have occurred or that the one party acted in bad faith in filing, the judge makes them pay attorney fees. It's happened in a few RIAA cases: Capitol v. Foster and Atlantic v. Andersen.

In the first case, the RIAA pursued Ms. Foster years after her adult daughter was found to be the one who downloaded the music. The only connection to the case was that her daughter was living with her and Ms. Foster paid for the Internet.

In the second case, Atlantic continued their lawsuit against Ms. Andersen for about two years after they obtained her HD which showed no traces of the music that she was alleged to have downloaded. Also Atlantic did follow up until years later on information provided by Ms. Atlantic and her lawyers that the username of the alleged P2P user was identical to that of another person in her area that admitted on his Myspace account to downloading music.

Re:Set up the precedent

[Byzantine]

Because we don't. There's not a better answer to your question.

If you think the US should have a "loser pays" legal system, get elected to the Congress and introduce legislation for it.

Re:Set up the precedent

[asdf7890]

Yes, but accidentally doing a little right in amongst a pile of wrong doesn't make the wrong any less wrong.

They'd never survive just going after just those sites that are genuinely , as most are based in countries they can't arrange any jurisdiction over and and/are run by people who difficult to trace.

You'll note that they aren't going after many large organisations: just those that are likely to just settle because they can't afford the case or can't afford the chance of losing far more if they lose the case.

Re:Set up the precedent

[jez9999]

Who actually thought up this way of doing things in the US legal system, and why didn't they realize it would decend into this?

Re:Set up the precedent

[Alex Belits]

s/Nazi/Texas/

Re:Set up the precedent

[Alex Belits]

You have two guesses.

Re:Set up the precedent

[Alex Belits]

That is supposed to happen AFTER some sanity will be returned into the rest of the laws. Because otherwise some smartass lawyer will start suing people for all kinds of bullshit and "pay" himself few billions per case, in hope that at least one of those lawsuits sticks.

Re:Set up the precedent

[Anonymous Coward]

Yeah, but why isn't it *always* "loser pays"? Then, as a defendant, there is an incentive to settle if you already know you're guilty (it will cost you even more money), and there's an incentive to keep going if you know you are innocent (your costs will eventually be covered by the loser), and for the accuser to settle or not bring the case in the first place. I don't understand why "loser pays" isn't the default.

Re:Set up the precedent

[Anonymous Coward]

Obama? Master Blaster?

Re:Set up the precedent

[rjhubs]

Having the loser always pay will also decentivize legitimate lawsuits. Imagine you work for 'megacorporation' and you lose a limb / are discriminated against / etc. Now if you want to sue, not only do you need to fund your own litigation, you may be responsible for the large legal expense of the corporation (they'll spend more the more legitimate and dangerous your case is) if the court decides the corporation is not to blame. Having the loser always pay would be an overall net loss for individuals.

Re:Set up the precedent

[Anonymous Coward]

And the Texass executed some nasty murderers...?

I don't think that word means what you think it means...

Re:Set up the precedent

[Wesley Felter]

AFAIK that loophole was closed decades ago; legal fees have to be reasonable in the eyes of the judge.

Re:Set up the precedent

[Mordok-DestroyerOfWo]

Any system created with the best intentions will be taken advantage of by scum like Righthaven and the media cartels. At this point though, the corporations have such a stranglehold on the US government, I seriously doubt we'll ever see any kind of meaningful change.

Re:Set up the precedent

[s73v3r]

Well, in cases like this one, I would first write to the ACLU, the EFF, the Center for Democracy and Technology, and any other group that has an interest in defending rights, especially technology related ones. However, if those appeals all failed, I'd probably be looking at a 5 or 6 figure expense for legal services, which I may or may not get back. On top of possibly having to pay damages.

Re:Set up the precedent

[s73v3r]

Unfortunately, nobody has come up with a system that is significantly better. Loser pays is something that often comes up, but that has the same effect of dissuading lower income people from taking action, particularly against bigger companies that can send wave after wave of corporate lawyers after them. You could suggest some kind of "Socialized Law", where the state would provide you with legal representation, but aside from criminal defense, this isn't all that feasible either.

Re:Set up the precedent

[s73v3r]

If its always, then if you are poor, you still can't afford to take the risks of legal action, especially against corporate lawyers who probably cost more than you make in a decade.

Re:Set up the precedent

[Anonymous Coward]

Um, that would be all the lawyers who wrote the laws in the first place, guaranteeing themselves and others of their thieving ilk a lifetime income from a legally enforceable extortion racket.

Re:Set up the precedent

[niado]

They're not all BS lawsuits. For example they also sued many search engine spamming websites that were just scraping content from other sites and trying to make money with other peoples content. Righthaven should just concentrate on those ones.

And the Nazis executed some nasty murderers

Godwin's law WIN.

Re:Set up the precedent

[infalliable]

Unfortunately, it's hard for people to do it. Copyright litigation is very risky, as fair use is vaguely defined. Although I'd say that 4 paragraphs is fair use, the statutes don't really set the limits. The law/case law says you should consider X,Y, and Z but aren't real definitive about where the line is drawn.

And lawyers are expensive. It's $200+/hr for a lawyer (roughly) and you're going to potentially need hundreds of hours to litigate a case in court. If it's a few thousand to make the issue go away, that sounds pretty good when you weigh the relative costs.

Re:Set up the precedent

[Americium]

That's what they do now, hoping just for them to settle. If they paid for their opponents lawyers, they would be broke after a case or two. If you haven't noticed, lawyers are pervasive in washington, on the left especially, so it's hard to change.

Re:Set up the precedent

[Alex Belits]

Have you checked actual fees charged for supposedly legitimate lawsuits? Or money paid by pawns to lawyers in SCO farce? I wouldn't call any of that "reasonable".

Re:Set up the precedent

[Alex Belits]

That's what they do now, hoping just for them to settle. If they paid for their opponents lawyers, they would be broke after a case or two. If you haven't noticed,

Not a problem! Just create a "client" that "pays" more than whatever was lost in previous lawsuits.

Re:Set up the precedent

[Sique]

I like the german system, where the sum you have to pay is depending on the sum you are claiming as damages and the damages you get finally awarded. The difference is then considered your "loss" in that case. If you ask for ridiculoulsy high sums of damages and get only a tenth out of the case, you lose 90% of your case, so you have to pay 90% of the whole cost.

Re:Set up the precedent

[shutdown -p now]

How about this: if a settlement was offered, and the defendant that rejected said settlement wins the case, then loser pays. Otherwise it's same as it is today. So if you're convinced that you're right in suing someone, you simply don't offer a settlement (though you can still accept one if they offer it to you).

Re:Set up the precedent

[sjames]

The defendant SHOULD be entitled to representation. After all, they are being subjected to the power of the state compelling them to appear. It should be meaningful representation just like criminal defendants are supposed to get but NOT like the overworked and often under-qualified representation they actually get.

The alternative is to admit that the courts have become the enemy of the innocent.

Re:Set up the precedent

[Anonymous Coward]

Texass?

Re:Set up the precedent

[RockDoctor]

I agree with subject line. Other posts suggest that "RightHaven" are not entirely without merit too (suing content-scraping companies). So, I ask myself, "What does 'Democratic Underground' do that would justify me supporting them?", by using their product, so that they benefit and can legalistically push RightHaven to behave more appropriately. There is, as the saying goes, no such thing as "BAD advertising".

[Self, Googles]

Oh dear, they're a bunch of American political blurbers. I suppose I should have guessed. Well, nothing good to do for them but encourage them to get out while the getting is good.

As a Freeper...

[Anonymous Coward]

Go DU!

Re:As a Freeper...

[psm321]

They sued Free Republic as well, but I believe that case was settled. Would have been fun to see both sites teaming up to fight the trolls :-D

Re:As a Freeper...

[JCCyC]

Well, now you see which site owner has balls and which one hasn't.

Oh this gives me a warm fuzzy feeling

[erroneus]

Troll's trolling backfires into a cost against their operations.

It is a difficult balance to determine who is a "troll" and who is simply defending their IP as needed. And any laws against trolls will invariably harm legitimate rights holders. The system isn't broken as much as it is taken advantage of.

Still, if there were a way to hang trolls like these out to dry while leaving legitimate rights holders unaffected, then such action is long overdue.

Re:Oh this gives me a warm fuzzy feeling

[Anonymous Coward]

Moderated "interesting" as a poor substitute for HELL YEAH.

Still, if there were a way to hang trolls like these out to dry while leaving legitimate rights holders unaffected, then such action is long overdue.

This. Very much.

Re:Oh this gives me a warm fuzzy feeling

[MysteriousPreacher]

A good start to restoring balance would be to seriously reduce the costs of defending these things, and keep the costs and restitution proportional to the actual damage caused by a violation.

Re:Oh this gives me a warm fuzzy feeling

[Anonymous Coward]

Starting a lawsuit == troll

Re:Oh this gives me a warm fuzzy feeling

[Coren22]

So, we should legally mandate a reduction in pay to lawyers? Yeah...that would happen...

Re:Oh this gives me a warm fuzzy feeling

[nomadic]

Why not? Tort and med mal reform has nearly killed attorney's fees in certain areas.

Re:Oh this gives me a warm fuzzy feeling

[hairyfeet]

You know I've actually thought awhile about this and think I have a solution: There should be a fund that BOTH sides have to place all the money they intend to spend on a case and then the money is split evenly between both sides for lawyer fees.

That way if two Apple size megacorps want to fight it out? Go nuts, you both pile in the $$$ and go WMD with the lawyers, but it wouldn't allow money to crush the little guy because BOTH sides would have equal funding and thus equal chance to decent consul.

Because as it is the megacorp can just keep a superlawyer on retainer and bury the little guy in motions and expert witnesses that he simply can't afford to match. It would be like taking your HS football team and putting them against the Denver Broncos, it ain't the HS team doesn't have heart, it is simply the experience and skill that the money can buy crushing the little guy.

I don't see why this wouldn't work in criminal as well, maybe it would keep miscarriages of justice like this* (please donate if you can, I have) from happening to the little guy.

*-For those guys here running blogs and websites please put a link to Free Tracy and spread the word. getting 18 years for being shot in your home and being too poor to fight back after they nearly kill you is just bullshit!

Re:Oh this gives me a warm fuzzy feeling

[Anonymous Coward]

Don't think it's possible with the current economy, but a government subsidization of defense lawyers for private citizens, with massive fines or criminal charges against frivilous lawsuits or bad faith might do it.

Re:Oh this gives me a warm fuzzy feeling

[s73v3r]

And any laws against trolls will invariably harm legitimate rights holders.

Ideally, that's what the judge is there for: To determine the proper application of the law.

Re:Oh this gives me a warm fuzzy feeling

[s73v3r]

There should be a fund that BOTH sides have to place all the money they intend to spend on a case and then the money is split evenly between both sides for lawyer fees.

Won't work. Each side will end up giving like $5. It wouldn't be in your interest to put any money in the pot.

Re:Oh this gives me a warm fuzzy feeling

[Quirkz]

What happens when the little guy sues megacorp simply because he knows megacorp will always have a lawyer and will basically fund his lawsuit against them? You don't think little guys would take all kinds of advantage here?

Re:Oh this gives me a warm fuzzy feeling

[Em Adespoton]

To me this sounds like a GOOD thing. It prevents large corporations with unlimited funds from dragging a case out for years until the other side goes bankrupt. If a side thinks it has a strong case and will win, it would have no problem spending thousands even if the other side spends nothing.

Added to that, the other side will still want representation, which costs money.

This could go a long way towards decreasing frivolous lawyer's fees, as the lawyers are going into the suit knowing how much they'll be paid no matter the outcome or how long it takes.

Re:Oh this gives me a warm fuzzy feeling

[Coren22]

That is a very good idea, I didn't think of it from that standpoint.

Re:Oh this gives me a warm fuzzy feeling

[Coren22]

Not that I don't believe you, but do you have any links to info about that? I have believed for a long time that med mal suits were what was causing the exploding of medical costs in this country, and I always thought it was the stupidest thing...

Re:Oh this gives me a warm fuzzy feeling

[AK Marc]

Good. It would be nice to have the little guy have some advantage. For all the whinings about the socialism in the US (Medicare, and all that), the US is still one of the least socialist and least egalitarian democracies on the planet. Boosting the little guy couldn't hurt, many more egalitarian societies are doing much better.

Re:Oh this gives me a warm fuzzy feeling

[hairyfeet]

Simple if the court rules the lawsuit was in any way frivolous the one that brought the case before the court owes triple what was in the pot to the other side PLUS court fees. Knowing you were gonna get buried in debt forever if you treated the courts like a lotto would shut that down pretty damned quick, while still leaving court a legitimate option for the poor to seek redress.

Because as it is now the court is a weapon of the wealthy against the poor. Hell just look at TFL to that criminal case I sited, where the guy is rotting in jail for 18 years for daring to grab a gun when someone kicks down his door in the middle of the night with no identification, and who then proceed to ventilate the guy. Now you and I know any decent lawyer would have gotten that thrown out, but where he lives a "public pretender" is just that, a joke used to fool the poor into thinking the courts aren't rigged in favor of money.

So while I'm sure that in the end there would be bugs to work out it would at least level the playing field so the side with wealth, be it the corp or the state, wouldn't be able to just bury the other side in motions or experts.

Re:Oh this gives me a warm fuzzy feeling

[nomadic]

A lot of it is word of mouth through the legal community, legal journals, and research I've done. Can't point to any specific sources but if you talk to a personal injury attorney or med mal plaintiff-side attorney in a lot of states they are very unhappy. And actually unlike some lawyers I'm not going to pretend med mal suits have no effect on medical costs--they do, especially preventive actions taken by doctors--but it's not nearly as much as the Republicans and malpractice insurers would have you believe. The main problem (I believe) is simply the fact that providing medical care has become so profitable, and the audience is such a captive one, that private sector medical companies pour on the fees as much as they can, aided by a health insurer bureaucracy that just won't police the medical service providers for some reason.

Re:Oh this gives me a warm fuzzy feeling

[Coren22]

The man who delivered both my children had to leave the obstetrics practice due to the cost of insurance. Everyone wants to blame the doctor for everything that goes wrong with their precious little package. It couldn't possibly be that birth is a risky process, or that things can go wrong. People look at it as the doctor causes their problem, when most likely if the doctor hadn't intervened, the result would have been death instead. I see the commercials for the medical malpractice suits, and they always piss me off, this is what makes medical procedures expensive, that half the money goes towards the insurance from lawsuits. The Health insurers have made every effort to control costs as far as I have seen, but it is difficult to do as every procedure is essentially unique, no two heart surgeries are exactly the same, but I bet the insurance payout is a set amount.

Re:Oh this gives me a warm fuzzy feeling

[nomadic]

Huh? In what possible way have you seen what health insurers have done to control costs? How many people did they have working behind the desk in billing at your doctor? Do you think that number seems a bit high?

Why isn't it a crime in the first place?

[Alex Belits]

Why malicious litigation, especially using a company specifically created for purpose of malicious litigation, does not result in company property being confiscated, and people involved being sent to prison? Oh, and shut up about it being a civil lawsuit, the chain of lawsuits is itself a crime in this situation (and demonstrably committed right in front of judges, so it's not like there is any shortage of evidence).

Re:Why isn't it a crime in the first place?

[FrostDust]

Many places have anti-SLAPP laws in place, to combat lawsuits which are primarily aimed to intimidate critics.

It may not be as applicable against copyright trolls per se, but silencing discussion of an issue by claiming copyright infringment on a quote from a newspaper article seems like an appropriate situation.

Re:Why isn't it a crime in the first place?

[Alex Belits]

This is bullshit. Specific law against lawsuits for "silencing critics" makes it looks like all other kinds of frivolous lawsuits are OK. That's like passing a law making robbery of a bald person a crime.

This should be treated as a form of fraud -- there are specific egregious kinds of fraud (such as SLAPP, racketeering, SCO-like stuff) however sending papers with threats, filing lawsuits, asking for settlement while being perfectly aware of the fraudulent nature of those actions, is still first and foremost fraud.

Re:Why isn't it a crime in the first place?

[smellsofbikes]

This should be treated as a form of fraud -- there are specific egregious kinds of fraud (such as SLAPP, racketeering, SCO-like stuff) however sending papers with threats, filing lawsuits, asking for settlement while being perfectly aware of the fraudulent nature of those actions, is still first and foremost fraud.

I agree with your sentiment. But there are some problems: first off, in order to directly address this kind of crappy behavior by large corporations, what we'd have to do is pass laws that slightly benefit everyone, but have a significant impact on a small number of lawyers and corporations, and when you have a diffuse public good vs. a concentrated moneyed interest, we as a culture haven't figured out how to do the right thing, because the public cares less and has less money than the lobbyists hired by the people who stand to lose money. It's a failing of democracy.

Secondly, what do you want to bet they'd say "but it's not fraud because look at all these people who settled!" They're taking advantage of the system to set up a situation that's self-fulfilling. That makes stopping them harder.

It's easy to say "well, we should just stop them from doing this" but it's pretty hard, in a system designed to presume innocence, that can be strongly influenced by money and lobbying, to actually find good ways of stopping people doing vile stuff like this.

Re:Why isn't it a crime in the first place?

[Alex Belits]

I agree with your sentiment. But there are some problems: first off, in order to directly address this kind of crappy behavior by large corporations, what we'd have to do is pass laws that slightly benefit everyone, but have a significant impact on a small number of lawyers and corporations, and when you have a diffuse public good vs. a concentrated moneyed interest, we as a culture haven't figured out how to do the right thing, because the public cares less and has less money than the lobbyists hired by the people who stand to lose money. It's a failing of democracy.

If someone did not notice, I oppose most forms of democracy for this very reason -- until population is educated enough to be something other than puppets. At very least, start with education.

Secondly, what do you want to bet they'd say "but it's not fraud because look at all these people who settled!" They're taking advantage of the system to set up a situation that's self-fulfilling. That makes stopping them harder.

Settlements should be treated as a part of the fraud -- if criminal investigation would be triggered as a results of such tactics, all potential lawsuits that would exist if not for settlement would have to be analyzed as a part of investigation. If supposed plaintiff would lose, settlement would have to be reversed, and plaintiff charged with fraud or possibly even racketeering.

Of course, that would require sane law and court system not bogged down by bullshit. But then I was never against the idea of a government big enough to crush any company -- in fact, that's the only way to keep them in check.

Justice works both ways

[Livius]

"[N]eedlessly running up legal costs" certainly does happen, and is certainly an abuse of the system, but demanding legal costs for defending against a bad-faith frivolous lawsuit is not an example, and courts (in civilized jurisdictions) are required to award them. Proving bad faith might be tricky, but that too does happen sometimes. I wish Democratic Underground luck

Righthaven sounds like a bully bemoaing the 'injustice' of a victim that finally fought back.

Re:Justice works both ways

[thsths]

> "[N]eedlessly running up legal costs" certainly does happen, and is certainly an abuse of the system,

And it applies here, too, but certainly it was Righthaven who started it, and therefore are the prime cause for needlessly running up costs. They can call of the law suit, but they cannot walk out on the bill. That's like me skipping desert and then not paying for dinner...

Re:Justice works both ways

[somersault]

I don't think it will be hard to prove "bad faith" considering Righthaven look for rights violations, and then buy up the Copyright license before suing. They also apparently haven't really transferred the Copyright rights correctly. Fuck them in their stupid asses.

Re:Justice works both ways

[Attila Dimedici]

I don't think it will be hard to prove "bad faith" considering Righthaven look for rights violations, and then buy up the Copyright license before suing. They also apparently haven't really transferred the Copyright rights correctly.

I believe that your information is incorrect. My understanding is that Righthaven is a corporation created by the owners of the Las Vegas Review Journal (and possibly one or two other media companies, I am not clear on the ownership of the other media outlets connected to Righthaven) for the purpose of suing those who use their copyrighted material. LVRJ transfers the copyright on all of its work to Righthaven in exchange for the right to publish said material. If this is correct, the problem with Righthaven's business model is that a significant portion of Fair Use doctrine involves whether or not the copyright violation interferes with the ability of the copyright owner to profit from the work in question (there is more to it than that, but if you don't interfere with the copyright holder's ability to profit, the bar is much lower for the other necessary peices). Since Righthaven only profits from the copyrights it holds by suing infringers, it is hard for them to argue that someone using their material impedes their ability to profit from it.

Re:Justice works both ways

[somersault]

Since Righthaven only profits from the copyrights it holds by suing infringers, it is hard for them to argue that someone using their material impedes their ability to profit from it.

Quite the opposite, in fact! :D

Fundamental Societal Issue

[tbannist]

Something really needs to be done about Righthaven, and the other parasites of modern society like the RIAA, the BSA, the MPAA, and patent trolls. They are exactly like burglars, they exist only to steal from honest hardworking people to benefit themselves.

Re:Fundamental Societal Issue

[inkscapee]

Something really needs to be done about Righthaven, and the other parasites of modern society like the RIAA, the BSA, the MPAA, and patent trolls. They are exactly like burglars, they exist only to steal from honest hardworking people to benefit themselves.

How about a physical beating? Seriously. Just think if the plaintiff's lawyers and their idiot clients were given a sound thrashing for every frivolous, malicious suit they bring. Bet they'd think a lot more carefully before suing someone.

Re:Fundamental Societal Issue

[Anonymous Coward]

And which "honest hardworking people" would those be? Illegally copying movies, music or software is not your right.

Re:Fundamental Societal Issue

[Anonymous Coward]

Whining on slashdot isn't "doing something". Either go and give them a beating or shut the fuck up.

Re:Fundamental Societal Issue

[BlackCreek]

And which "honest hardworking people" would those be? Illegally copying movies, music or software is not your right.

That would be the guys quoting 4 paragraphs (out of ~45) of newspaper text in a bulletin

Re:Fundamental Societal Issue

[praxis]

Well, the honest ones. You know, the droves of people that were bullied and sued when they had done nothing wrong because the *AA likes to go on fishing expeditions. We're talking about stemming frivolous lawsuits here, not honest-to-goodness copyright infringement cases.

If the RIAA for example would follow the laws in collecting evidence, securing warrents, and then suing the case, I'd have no problem with that. But when they try to save on their costs by using the shotgun approach with flimsy "evidence" to get warrants and then hope they're right in a them versus 300 people combined suit, they're trolls.

Those actions make it obvious they're not looking to achieve justice when they've been wronged by copyright infringement but are rather angry that people stopped buying their shitty product years ago and are desperate for any source of new income.

Re:Fundamental Societal Issue

[Locke2005]

Ever heard of the concept of "fair use"? It is impossible to criticize a stupidly written article without quoting at least a small part of it. Agreed, you have no write to copy other people's work in toto.

Re:Fundamental Societal Issue

[sjames]

Preferably, something will be done before we get to the point where civil courts do more harm than good (if we're not there yet).

Too easy to back out

[Drakkenmensch]

Avoid an unfavorable precedent is too easy to do. If the lawsuit instigator was forced to see their lawsuit through even when it doesn't look like a sure win for them, you'd see a lot LESS frivolous lawsuits.

Re:Too easy to back out

[Myopic]

Actually, you wouldn't, you probably see a lot FEWER frivolous lawsuits. /grammar nazi

Actually I think you have a good idea. Once a lawsuit is filed, the options should be
1. defendant settles for whatever terms are acceptable for plaintiff
2. plaintiff settles for whatever terms are acceptable for defendant, which would normally be costs plus punitive damages
3. judge makes a ruling on the initial question

It's odd that we allow a plaintiff to drag a defendant into court, only to then drop the case. Courts should recognize that going to court in the first place is an imposition worthy of remuneration.

Re:Too easy to back out

[inviolet]

Courts should recognize that going to court in the first place is an imposition worthy of remuneration.

Cognitive Dissonance prevents them from recognizing that fact.

Re:Too easy to back out

[Anonymous Coward]

Yeah, but if everyone would use the correct word, we'd see a lot less posts about it.

I hope the defendant's lawyer is EXPENSIVE.

[Anonymous Coward]

If their settlement extortion doesn't result in criminal charges, at least they can be bled dry from court costs.

Re:I hope the defendant's lawyer is EXPENSIVE.

[Overzeetop]

They're always expensive. You charge $500-1000/hr, racking up the charges against the client's account while charging a minim monthly retainer (say, a moderate percentage of your total fees) which is applied to the balance until the case is complete. If you win and successfully argue that your client is due fees, you collect. If you lose (or win and don't get fees paid by the other side), you "write off" the unpaid portion of the fee as bad debt, and still end up with the $250-350hr you were paid monthly.

Now, I have no idea if this is what actually happens, but it's what I would do if I were a Lawyer.

Re:I hope the defendant's lawyer is EXPENSIVE.

[BitZtream]

No you wouldn't. You wouldn't be the same person if you were a lawyer. By the time you become an effective lawyer you've learned to twist everything to your advantage as a matter of instinct.

You would do what you say because you are not a lawyer. Lawyers on the other hand are wired to take full advantage of every possible situation they encounter, right or wrong.

Re:I hope the defendant's lawyer is EXPENSIVE.

[Anonymous Coward]

At least in "loser pays" countries, this is considered fraud. It's not prosecuted nearly enough, and not enough lawyers are disbarred over this.

Re:I hope the defendant's lawyer is EXPENSIVE.

[Byzantine]

You know, you're right. I am not a lawyer, but I deal with them on a day-to-day basis for my job. Many—most, even—of them are some of the nicest people on a personal level. But you start talking about legal matters with them and suddenly they are complete bastards. I don't know whether this is something inculcated in law school or what.

good!

[llung]

A taste of their own medicine is just what they deserve.

Re:good!

[MysteriousPreacher]

One can only hope that Steve Gibson receives a visit from the cancer fairy, and in his final minutes comes to realise what an utter cunt of a bottom feeder he is. Righthaven's approach is merely a refined version of the mob shakedown.

Losing plaintiffs should ALWAYS pay

[Anonymous Coward]

And winning defendants should be rewarded restitution. I just don't see how anything else could be logical. Under no circumstances should a winning defendant ever pay a dime. Any other policy is just asking for abuse.

Re:Losing plaintiffs should ALWAYS pay

[Anonymous Coward]

Perfect! So debt collection company sues you for a debt totalling $1,000. You look up some background on their company and find that in general, they are awarded $250,000 in legal fees when they win, all paid to lawyers on their payroll. They win 25% of the time, so they are usually wrong when they sue someone for a debt. When they lose they usually end up paying $5,000 in legal fees, because the defendants generally select a lawyer closer to their own payscale. Overall, this company is making money hand over fist not on collecting debts, but by having an in-house legal team.

Now, consider that you have two choices: Pay them $1,000 (although you don't agree the debt is yours) and they go away. Or don't pay them $1,000 and risk a 3 in 4 chance that the only thing that will happen is they will waste your time, and a 1 in 4 chance that your life will be completely destroyed and you will lose everything you own and have to rebuild from scratch.

What do you do? Risk it all and request justice, because you know that this company is usually wrong and are certain this debt is false, or lose a paycheck and go on with life?

That's why loser always pays is a terrible idea. The loser paying should be reserved for cases where someone is clearly abusing the legal system. Otherwise, you end up with a MAFIA of lawyers running a protection racket. "It'd be a real shame if someone burned down your store, we have a fire protection team for only $50 a month."

Re:Losing plaintiffs should ALWAYS pay

[Daniel_Staal]

So an individual who sues a corporation over a defective product, then the corporation spends $XX million on lawyers to find a loophole, and the individual now has to pay the lawyer bill of the corporation...

All policies are open to abuse. One that allows decision on a case-by-case basis probably has the best chance of limiting that abuse.

Re:Losing plaintiffs should ALWAYS pay

[Anonymous Coward]

That's great, Chief, but if you read a little more carefully, you'll notice that I said "losing PLAINTIFFS should always pay". With a collorary of "winning DEFENDANTS should be awarded restitution".

Re:Losing plaintiffs should ALWAYS pay

[Anonymous Coward]

Okay, in that case imagine a crappy neighbor who consistently violates local ordinances, but happens to weasel out of them. You take him to court every few months because he does random suck things that illegally lower the value of your house and damage your property.

You win sometimes, and you lose sometimes. You don't have a lot of money, so you are a pro se litigant. He hates you, and he happens to have a job (with the local gang, of course) that pays well, so he hires the most expensive lawyer (who really only charges him $2,000, because he's part of the gang and crime pays) in town each time, at a "cost" to him of $25,000 each case. You win 3 out of 4 times, generally winning a judgment of $1,000 each time for various ordinance violations or damage claims. You lose once because the burden of proof is rather high, although it seems obvious to everyone in the court the offense happened, it's rather difficult to prove 6 months after the fact that your neighbour was running an illegal underage drinking party and possibly a bawdy house with 120 dB of music the an entire weekend.

Congratulations! You just gave him the keys to your new car. He doesn't care that he lost $9,000 fighting you, because he has money and he know that you'll never sue him again because you can't afford to lose even when you're right. He now runs a 24x7 crack house and is making money hand over fist. Your house is worth nothing because nobody would want to live beside such an eyesore. The city brings him to court, but also gives up when they lose several million on a technicality because his lawyer is coming up with bullshit, including his bullshit fees.

Eventually, your neighbour and the lawyer end up in prison for fraud and drug related offences. The crack house burns down. 20 years later your property is finally worth something again.

Still doesn't work. You need to have a system that is never always loser pays on either side. Each case needs to be decided based on merit and nothing else.

Want something a little less over the top? You buy a product. The product fails spectacularly, seriously injuring you. You aren't moneyed, so you sue the manufacturer in small claims court for the cost of the product, plus the $5,000 in hospital fees sustained form the product. The manufacturer busts out its big guns lawyers and you lose because its damn hard to prove everything to a T. Oh, their lawyers cost the manufacturer $1.5 m. Please pay up, we'll take the house now. You're welcome to appeal, but we have a feeling you won't be because you're living on the street.

Re:Losing plaintiffs should ALWAYS pay

[Anonymous Coward]

Read again, he said losing plantiffs not losing party.

Basically, this would thin the number of lawsuits because you would never want to sue unless you were sure to win.

Re:Losing plaintiffs should ALWAYS pay

[zQuo]

Well, as I understand it, a losing plaintiff pays only up to their own legal costs. Sort of a double or nothing. Say an individual plaintiff spends $15k to prosecute, and the corp defendant spends $XX million. If the individual plaintiff loses, the plaintiff will have to cough up the lesser of the two costs, $15k, to partially compensate the corp defendent legal costs.

Re:Losing plaintiffs should ALWAYS pay

[praxis]

Your second example should be the one you started with, and possibly the only one you presented. Regardless, I am not sure you know how small claims court works with regards to lawyers.

Re:Losing plaintiffs should ALWAYS pay

[Locke2005]

Skip to the chase. If your neighbor is running an illegal operation out of his house, perhaps your first action should be to burn the house down. No greedy lawyers involved! (Unless you get caught.)

This one's easy

[dkleinsc]

"Your Honor, the plaintiff is complaining that our firm is providing vigorous and effective defense. Which is precisely what our job is under the rules of the American Bar Association."

Or alternately:
"The plaintiff has got to be kidding."

Re:This one's easy

[gpmanrpi]

Your comment is probably not far from the actual defense, except that the ABA controls approximately 0 lawyers rules. They make suggestions that real bar associations adopt if they feel like it. Kinda like a suggested rules. The local rules for the court would apply.

Re:This one's easy

[dkleinsc]

Thanks for the correction: I'm only lawyer spawn, not a lawyer.

Looser pays

[Ice Tiger]

It's why we don't have this shit in the UK.

Re:Looser pays

[Fippy Darkpaw]

Looser pays.

Exactly what type of test is used to determine how loose the litigants are relative to each other?

Re:Looser pays

[Anonymous Coward]

A traditional British black pudding rectally inserted at right angles to your passage. The Old Bailey has the oldest known black pudding used for this purpose, dating from 1782. Amongst members of the bar this venerable sausage is known as "King Arthur", though the reasons for this are lost in the mists of time. Scholars argue that King Arthur's shrivelled nature (and hence ease of insertion) is an example of the London-centric bias of British justice; the fresher puddings used in the shires are much more likely to provoke (the salty kind of) tears.

Due to an unfortunate mistake in the drafting of the Maastricht treaty, this practice cannot be stopped without the unanimous consent of all EU member states. Despite years of pleading from the British government, the French are adamant that British litigants must continue to suffer this meaty indignity.

(Text from Wikipedia.)

Re:Looser pays

[Coren22]

The judge gets to test out both of them?

Re:Looser pays

[adamdoyle]

Lawyers make the rules here in the US. IIRC, lawyers make up about 45% of the US Congress. The rest are typically small business owners and corporate executives. "Loser-pays" isn't really in their best interest.

Just remember

[Anonymous Coward]

That copyrights are not a free market entity, but an unnatural contract forced on everyone by coercion of government. In the U.S., the federal constitution does not authorize most things that the federal copyright code establishes. It'd be nice if the courts would recognize that a legal firm is not the "author" referenced in the Big C, but I guess there's too much money to be made making up illegal rules.

creators; thou shalt not be afraid to ask

[Anonymous Coward]

really more of a suggestion? trans; we've got a lot on 'the table' here. maybe you've yet to grasp that
we (the living) have stopped doing fear, & mental/physical violence almost
everywhere else, which is a big turf. you're (by merit of the nazi
mutants' life0cidal intentions) giving off some of the most negative
energy we've had to extinguish yet. tears continue to fall, as the
overwhelming majority of you are developing as anticipated,,, again.
nobody's going anywhere 'till the bips say so. move inland. learn to duck.
stop ingesting their poisons (a by-product of your so-called 'hard times'
so that's good?). we've got you 'covered'.. presently, trolls (really)
treat each other better than you misinformed marchers even treat
yourselves.. see you at any of the million babys+ play-dates, conscience raisings, georgia stone editing(s), baby rescues, & a host of additional life loving events. guaranteed to activate all of our sense(s) at once.

As a rational Independent....

[oldmeddler]

...this story presents me a real conundrum. Which evil organization do I root for?

Re:As a rational Independent....

[praxis]

The one that's right in this case. That's what being rational means, that you reason through things on a case-by-case basis. Writing off an organization as evil to such a degree that when they do the right thing you face a conundrum is exactly the opposite of being rational.

Like father have been telling sons for many years

[Picass0]

...Don't ever start a fight, but if you find yourself in one you finish it.

Good luck to DU.

Other countries manage it. Why not USA?

[Anonymous Coward]

Other countries manage it. Why not USA? It seems that American Exceptionalism means the USA is exceptionally unable to act responsibly according to the very americans who espouse it.

Re:Other countries manage it. Why not USA?

[Anonymous Coward]

You mean those nasty socialist European counties with their ant-capitalist laws?

Re:Other countries manage it. Why not USA?

[Alex Belits]

Other countries are not run by lawyers -- at least not by the most corrupt kind of them.
Also other countries did not reduce their economy to people:

1. buying cardboard houses and microscopic chunks of land for what amounts to four years of average salary -- using bottomless credit, of course.
2. throwing money abroad (from the same bottomless source), buying random products and reselling them with massive markup locally.
3. doing each other's laundry (a.k.a "service economy").
4. suing each other.

Let me be the first to say...

[DarthVain]

Boo Hoo.

I am sure they fight legitimate copyright cases as well, but the one in question is BS, and considering the media companies track record in this type of activity I have (and likely many people) zero sympathy for these guys.

I know its not about right and wrong, but about getting the maximum return for clients, but somewhere along the way I think justice got lost.

In practice

[tepples]

the ABA controls approximately 0 lawyers rules. They make suggestions that real bar associations adopt if they feel like it.

But in practice, how many state bar associations adopt the ABA's model rules verbatim or nearly so?

/. infactdead with mutants?

[Anonymous Coward]

like sub-titling the worst event in history to date (standby?); "surf's up".

Re:Like father have been telling sons for many yea

[Shotgun]

My Dad, rest his soul, always told me to not place a bet I wasn't guaranteed to win unless I was willing to give the money away in the first place, and don't start a fight I wasn't guaranteed to win unless I was willing to take a beating for whatever the fight was about.

hmm

[nomadic]

"'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,' say attorneys for the EFF. 'To allow Righthaven to avoid compensating those who have no choice but to defend would be unjust and unsupportable.'"

The EFF has no moral authority on this issue, after they asked for legal fees of $400,000 for writing a letter in response to the DMCA takedown in Lenz v. Universal.

Re:hmm

[nomadic]

Actually wait, that might have been for litigation fees. I need to look into this. Still stupidly high though.

Righthaven (duhhh)

[Anonymous Coward]

The people who run this troll firm are lawyers who haven't been laid in 25 years. The issue with copyright in general is a reason why we have the problems we do today (I don't think our founding fathers intended to have copyrights last so long as to provide income to a(n) authors family, after the author is dead, and by definition, cannot produce any more work).

Return copyright (via constitutional amendment) to the life of the author, until the the last offspring produced by said author reaches the age of 18, and at that point, the remaining family gets on with their lives.

Stand up

[alfredo]

Stand up to the corporate whores. DU, stand strong against these capitalist assholes.

Because victory is never assured

[Chris Burke]

Yeah, but why isn't it *always* "loser pays"? Then, as a defendant, there is an incentive to settle if you already know you're guilty (it will cost you even more money), and there's an incentive to keep going if you know you are innocent (your costs will eventually be covered by the loser), and for the accuser to settle or not bring the case in the first place.

Because the first thing any decent lawyer is going to tell you when you sit down in their office is to forget this notion that because you "know" you are innocent, you "will" eventually win and your court costs "will" be covered. The world simply doesn't work that way.

The number of cases where you can be 100% certain that you are legally in the clear is vanishingly small. Even seemingly clear-cut cases of a Fair Use defense against infringement can hinge on subtle points of previous precedents that you know nothing about and your lawyer hasn't researched yet because at this point they haven't even taken the case. Especially in the general case, it is absolutely the case that just because you think you are in the right -- even if you are in the right -- that doesn't mean you will prevail in court.

So you, Average Joe, are being sued by a big corporation for twenty grand. You know you might lose, and you know that if you go to court, the corporation will do just about anything to win and avoid a negative precedent. Their legal costs could be many times what they're suing you for -- especially because if they win, you foot the bill. The twenty grand would be a severe hardship, but their legal fees would crush you. They're offering an out-of-court settlement of three grand, which sucks but you can manage.

How do you think most people are going to see this? They're no longer just gambling the cost of the suit, but the cost of a high-priced corporate legal team.

Universal "loser pays" would not encourage most people to stand up to lawsuits. It would have a severe chilling effect. It would give the big corporations an even bigger advantage, beyond already having more expensive lawyers than you. Because they could trivially pay for your lawyer fees, but you could not come close to paying for theirs. Any decent lawyer would tell you to be extremely careful when deciding to stand up to them, and any sane client would listen.

No, the capitalist European countries

[Anonymous Coward]

No, the capitalist European countries with their pro-Free Market laws.

1 lawsuit per day, will eventually make them pay

[Anonymous Coward]

just running some quick numbers, in the past year they have filed 246 lawsuits. There are approximately 261 weekdays (5/7 * 365) and 9 holidays. So that leaves 252 work days for that 246 lawsuits. That's pretty goddamn impressive.

Is it necessary to create a process that will limit the number of lawsuits brought about by a single entity over a certain span of time? I certainly hope not, but unfortunately companies like Righthaven make it seem necessary.

Noose!

[Anonymous Coward]

Rapists, kid touchers, most lawyers, and these guys.... /justsayin

Live by the gun

[Runaway1956]

die by the gun

Or, in this case, live by frivolous litigation, die by frivolous litigation. I hope they lose big time. Actually, I hope they lose several cases in a row, and just go belly up. Dirty rat bastards.

I find it funny

[Anonymous Coward]

It's hilarious that the denizens of DU, whose watchwords are "Sue! Sue! Sue!", no matter how frivolous the case, when they think it can be used as a weapon against their political enemies, now gasp and clutch at their pearls when they are on the receiving end.

Of course, no one ever accused them of being consistent.

Thats' ol RimJob for ya

[axl917]

The FReeper leader is anything but.

What would make sense, maybe...

[AliasMarlowe]

We don't have 'loser pays' in the USA

And the almost automatic "loser pays" as it exists in the UK (for instance) causes an arms race between litigants in increasing legal fees. After all, another few thousand quid on legal arguments and legal research might just tip the case in your favor, and your opponent will have to pay. The lack of an automatic "loser pays" in the US leads to fear of Pyrrhic victory, in which you prevail in court, but are crippled by legal fees which you must cover yourself.

Why not have a "loser pays lesser of loser's and winner's legal costs"? This would not completely eliminate being burdened with legal fees whether one wins or loses, but would allow one to control the cost of losing against a deep-pocketed opponent. It would thus empower more people to defend themselves against litigation which smacks of extortion or which appears frivolous but is expensively prosecuted.

Re:What would make sense, maybe...

[Americium]

Great, great idea. It makes for fun strategic analysis as well. Seems like a perfect risk/reward ratio for both sides.

ITT Tech boy trying to play "attorney" now? LMAO!

[Anonymous Coward]

See subject, end of story (laughing TOO hard now). He can't even do computing well, see this http://slashdot.org/comments.pl?sid=1930156&cid=34734160