Death Knell For Righthaven In 9th Circuit Decision

An anonymous reader writes with this snippet from Ars Technica: "Righthaven, the Las Vegas operation that sought to turn newspaper article copyright lawsuits into a business model, can now slap a date on its death certificate: May 9, 2013. This morning, the U.S. Court of Appeals for the Ninth Circuit ruled on the two Righthaven appeals that could have given the firm a final glimmer of hope — and the court told Righthaven to take a hike (PDF)."

Comments

Points at Linux Linux Advocates

[Anonymous Coward]

Hideki!

Re:Points at Linux Linux Advocates

[Anonymous Coward]

Aww, the trolls found each other.

"I'm not dead yet"

[girlintraining]

Reminds me of the Monty Python skit. But I digress. We might be able to stick a fork in this business and call it done, but they haven't targetted the individuals behind it; They can simply incorporate under a new name, in a new jurisdiction, and continue on their merry. And there's a lot of other ways to troll people with official-looking legal letters of demand that have proven successful as well, when you look at it from a profit perspective.

The courts will have to do a lot more than this to stop them: They need to make people personally liable, not just the company names they use as shields.

Re: "I'm not dead yet"

[alen]

There are now cases setting precedent
Any defense lawyer can cite them in a new lawsuit and it will be thrown out on summary judgement

Re: "I'm not dead yet"

[girlintraining]

Any defense lawyer can cite them in a new lawsuit and it will be thrown out on summary judgement

You're missing my point; Their business model doesn't require this court to approve, merely a court. And until the people behind it are hung out to dry, they can just keep reincorporating in other jurisdictions and continuing. They still have eleven more chances at the circuit court level, if you include the DC and federal circuit courts. Though it's unlikely this would be heard by the federal circuit court, it is on the same jurisdictional level, technically.

That's the thing about our judiciary branch: It has a nearly limitless appeals process. This represents a victory in one court for one approach to the problem. So long as they can eek out profit or retain funding... they can keep this up, effectively forever.

But ignoring that, you still have the corporate shield against personal liability to contend with. You have to put real people's asses on the line to stop this: Levying fines against corporations is pointless... you can just declare bankrupcy, and in the very next stroke, incorporate a new business with a fresh ledger and continue on your merry.

Re: "I'm not dead yet"

[poetmatt]

any judge who doesn't follow precedent is going to get benchslapped if they don't have a valid reason to disregard it.

Re: "I'm not dead yet"

[swillden]

They still have eleven more chances at the circuit court level, if you include the DC and federal circuit courts.

This is the federal 9th circuit court of appeals, so its decisions are binding on all district courts in the 9th circuit. Yes, there are 11 more appellate courts (10 circuits, plus DC), on whose courts this decision is not binding... but it still establishes a persuasive precedent that other circuits are going to be reluctant to ignore. If they got another appellate court to disagree with the 9th, it would go to the Supreme Court for a decision. If, on the other hand, they the other court sided with the 9th, the non-binding precedent would become almost impossible to override.

So, no, they don't have eleven more chances, nor even 10. At best they have one remaining chance, and it's a very, very long shot: go to trial in a district court in a different circuit, win that, win the appeal and then win in DC. Given that AFAIK they haven't found a single judge who didn't slap them down, I think that's vanishingly unlikely.

Re: "I'm not dead yet"

[girlintraining]

.. but it still establishes a persuasive precedent that other circuits are going to be reluctant to ignore.

That's now how the case law system works. While the judges from other circuit courts may research out a case in their own jurisdiction comparatively like this, they are neither expected nor required to -- and rarely do because of high workloads. It is the job of the prosecution and defense to cite specific applicable case law. Citing the case law from another district is worth the same as citing a court in another country, in a strictly legal sense, and may even earn them a chastizing by the judge for poor form in attempting it.

If, on the other hand, they the other court sided with the 9th, the non-binding precedent would become almost impossible to override.

You apparently aren't aware of a major legal battle brewing in this country over gay marriage. If anything showcases our marble-cake judiciary, it would be this. California rules one way. Maryland rules another. They both appeal to the circuit courts. Three of those courts rule one way, two rule a different way, a few refuse to hear it, and others remand it back to lower courts after finding substantive problems with the original case. There is no "impossible to override"; Case law is hereditary. The highest court to rule on it takes precidence, but courts on an equal level can have conflicting and contradictory rulings and they each stand on their own within their jurisdiction if and until a higher court rules on it.

It can be said that over a long enough timeframe, these inconsistencies are settled and case law tends towards unity, but the caveat here is over a long enough timeframe. Justice is neither swift, nor efficient, in our judiciary system. And arguments can be made to keep it that way, but it is beyond the scope of this discussion to have.

So, no, they don't have eleven more chances, nor even 10. At best they have one remaining chance, and it's a very, very long shot: go to trial in a district court in a different circuit, win that, win the appeal and then win in DC. Given that AFAIK they haven't found a single judge who didn't slap them down, I think that's vanishingly unlikely.

I could provide a detailed exposition on how flawed the logic is here, but having already blown away your supports, there's no point. But if I haven't made it clear enough by now that you're mistaken, consider this: How long have these copyright cases been appearing on the pages of this website? Days? Weeks? Months? Years? Decades? History suggests that the problem will not simply dry up and shove off because a dozen judges in a single court has had enough.

Re: "I'm not dead yet"

[AuMatar]

Umm, its relatively common to cite cases from other districts, and not uncommon to cite cases from other countries, or at least the legal logic in there. Neither are binding, but judges do consider them.

Re: "I'm not dead yet"

[girlintraining]

Umm, its relatively common to cite cases from other districts, and not uncommon to cite cases from other countries, or at least the legal logic in there. Neither are binding, but judges do consider them.,/quote>

If the citation is about the logic of the argument, you're absolutely right. Some people say it better than you can, and courts recognize this. I agree completely. But you hit the nail on the head when you said it's not binding. What I was saying about form is if the brief that was submitted implied that case law from another circuit court had legal weight, the judge would be unamused in a "Picard facepalm" kind of way. It'd be the courtroom equivalent of calling tech support for a broken computer only to find it hadn't been plugged in. It's a stupid mistake, and will earn you some ribbing for it.

Sorry, the distinction I was making was a subtle one. Case law is, frankly, an archaic part of our judiciary that we have the British to thank for. Working with it is not unlike how I feel when I get a ticket for "network slowness" and when I arrive at the site I find they're using token-ring. It's like "FFFFFUUUUUuuuu..."

Re:"I'm not dead yet"

[maz2331]

They can keep trolling right along, but just need to restructure the deal as a contingency-fee based legal representation and file the suits in the name of the newspaper instead of the troll. Of course, that opens the paper up to damages on any counter-claims or fee awards if they bring a baseless suit, and unlike the shell company troll that Rightshaven was, actually do have assets that can be taken to satisfy such an award. And they will have to accept the PR hits that such suits would generate as well.

Re: "I'm not dead yet"

[ArsenneLupin]

... how I feel when I get a ticket for "network slowness" and when I arrive at the site I find they're using token-ring.

I'd say token ring belongs on the junk yard, but nowadays even junk yards don't want it (and its proponents) any more. Next subject: Lotus Notes...

Re: "I'm not dead yet"

[mcmonkey]

You apparently aren't aware of a major legal battle brewing in this country over gay marriage. If anything showcases our marble-cake judiciary, it would be this. California rules one way. Maryland rules another.

Apples and oranges. Marriage rules are in the state and local laws. So it's perfectly natural courts in different states would rule different ways. They are implementing different laws.

Copyright is national. All courts in the US are working from the same set of copyright laws. Given the same set of facts, they should follow precedent.

Re: "I'm not dead yet"

[Anonymous Coward]

You first. STFU and GTFO

good week for stoning the trolls

[swschrad]

first, in California. now, in the whole 9th Circuit. it's open season on trolls, shine light on them and watch them turn to paving blocks!

Re:good week for stoning the trolls

[flayzernax]

HUZZAH!! =)

Good

[cmdr_klarg]

Kill it with fire, and cremate the body so it can't come back.

SCO anyone?

[Arancaytar]

Don't celebrate too early.

Re:SCO anyone?

[SMTB1963]

I'm a /. n00b. WTF is SCO? (link(s) would be helpful)

Re:SCO anyone?

[Anonymous Coward]

Try this really awful Wikipedia article

https://en.wikipedia.org/wiki/SCO_Group

Some of it's wrong, or just incomprehensible, but it gives a general flavour of what went on.

(e.g. the claim in the second paragraph that Caldera International's name change to the SCO Group was later than March 2005 is crap, and contradicted further down the page where it's said to have been in 2002. It happily tells you that "their next scheduled hearing is January 18, 2011" - I suspect that's been cancelled by now. It defines "SCO" as referring to The Santa Cruz Operations then a couple of paragraphs later starts using it to mean The SCO Group instead. And really too much other nonsense to list. Sometimes I think Wikipedia is written by any random person who feels like scribbling whatever comes into their mind, which of course it is. Still, the article is better than nothing.)

Re:SCO anyone?

[sconeu]

Groklaw is probably the best site for info on SCO(XQ)

Re:SCO anyone?

[SMTB1963]

I am enlightened by AC - thx

Re:SCO anyone?

[SMTB1963]

Groklaw is probably the best site for info on SCO(XQ)

ok...groklaw...looks good for some other stuff too...thankyou

Not till Texas executes it.

[Anonymous Coward]

Not till Texas executes it.

Not necessarily completely dead yet...

[BitterOak]

Righthaven still has the right to appeal to the U.S. Supreme Court. The Supreme Court can then decide whether or not to hear the appeal. If they choose not to, then it's over for Righthaven.

Re:Not necessarily completely dead yet...

[Zordak]

A little bit pedantic here, but nobody has the right to appeal to the U.S. Supreme Court. If you lose at the district court level, you have the right to appeal to the federal appeals court for your circuit. If you lose at the circuit court, you can petition the Supreme Court for a writ of certiorari, which means they can reach out and grab that case with their awesome Supreme Court judicial superpowers. It's a bit like a pauper begging the king to intervene on his behalf because he feels like the local magistrate has treated him unfairly. And most petitions for cert fare about that well.

Done? Really?

[Virtucon]

I guess they've never heard about SCO v. IBM.. and SCO v. AutoZone and ...

SCO was the retarded company that wouldn't go away and never had a leg to stand on yet they kept on filing suits that in retrospect were dumb. We all knew
that they were dumb at the time but again, there's this thing called the legal system.

The legal system unfortunately has these things in them called lawyers who bill at astronomical rates and right now there's a flood of lawyers on the market. So, there'll be a high probability that they'll keep on filing claims, counter claims and outrageous charges everywhere.

So, stay tuned I'll bet there will be another chapter in this saga.

   

Hey, Sue!

[Impy the Impiuos Imp]

It sounds like, rather than be like a law firm hired to go after violations on behalf of clients, which is the normal course of action, they were behaving more like a collection agency, buying out an imagined debt at risk, then going after it themselves.

A lawyer would have to explain how they are trying to transfer the right to sue without actually having legal ownership, while simultaneously managing to give up the client/lawyer relationship where they are just the client's representative.

Copy and paste much, editors?

[girlinatrainingbra]

The actual link for the pdf "Publication of Righthaven LLC v. Hoehn" from the United State Court of Appeals for the Ninth Circuit is at http://randazza.files.wordpress.com/2013/05/righthaven-v-hoehn.pdf

which is the link listed in the Ars Technica article "Copyright troll Righthaven finally, completely dead" . I guess the editors copied the text from the Ars Technica article including the "(pdf)" parenthetical statement pointing out that the Ars Technica URL link points to a pdf file. Then they inserted the link to the Ars Technica article itself, rather than the link to the pdf file. (why am I bothering writing this?? no one else seems to have noticed the botched and borked link!)

Re:Copy and paste much, editors?

[newcastlejon]

(why am I bothering writing this?? no one else seems to have noticed the botched and borked link!)

I've come to the conclusion that timothy does read, but doesn't care. Take that, Hanlon!

Re:"I'm not dead yet", passing it onto a new group

[Anonymous Coward]

this was probably already mentioned, but even if you can convict the people behind it, they will just find others to continue there scam.

legal and common in Germany

[stenvar]

To put this into perspective, Righthaven-style shakedowns are legal and common in Germany and probably other European nations.

Exactly what I was thinking...

[crovira]

But, whatever happened to Derle anyway?

Maybe he was forced to find honest work? (But his company, ME INC, doesn't even have a web site. :-)

Nahhhh. Never happen.