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

[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

[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

[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

[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

[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]

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

[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.

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

[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

[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!

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).

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

[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

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.

good!

[llung]

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

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

[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: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.

Looser pays

[Ice Tiger]

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

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.

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.