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Attorneys: Righthaven should pay $34,000 for legal fees

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Las Vegas- from – Las Vegas newspaper copyright lawsuit filer Righthaven LLC should pay $34,000 to cover a prevailing defendant’s legal fees, the defendant’s attorneys argued Tuesday.

U.S. District Court Judge Philip Pro [pictured] in Las Vegas on June 20 dealt Righthaven a double blow when he found Kentucky resident Wayne Hoehn was protected by fair use in posting an entire Las Vegas Review-Journal column on a sports website; and that Righthaven didn’t have standing to sue over the post.

Righthaven has hinted it may appeal Pro’s ruling but as of Tuesday morning had not done so. Hoehn’s attorneys, in the meantime, submitted a $34,000 bill to Pro on Tuesday and asked that he require Righthaven to pay it.

The $34,000 could be just the tip of the iceberg for Righthaven, should the Democratic Underground prevail in what likely will be a far larger fee demand. At least three other defendants whose cases were dropped or dismissed – Brian Hill, Michael Leon and Denise Nichols – are demanding their fees be paid too.

Attorneys for the Electronic Frontier Foundation are also considering seeking fees for their representation of defendant Thomas DiBiase, whose case was dropped because of Righthaven’s lack of standing to sue.

Righthaven also faces potential monetary sanctions in the Democratic Underground case.

Righthaven since March 2010 has filed 274 lawsuits alleging online infringement of material from the Review-Journal and the Denver Post. Its litigation campaign appears to be stalled because two federal judges have found Righthaven doesn’t have standing to sue and three more are threatening to do the same thing.

Righthaven claims to own the copyrights it sues over, but judges Pro and Roger Hunt in Las Vegas have found Stephens Media LLC, owner of the Review-Journal, maintains too much control over the copyrighted material for Righthaven to have standing to sue.

In the Hoehn case, attorneys for Randazza Legal Group noted the fair use victory for Hoehn was Righthaven’s third fair use loss vs. no final orders providing fair use victories to Righthaven.

They noted fair use is an important concept under the First Amendment and copyright law as it allows people to use, within limits, the work of others for purposes such as commentary and criticism.

“Fair use is valuable when counterbalancing the potential free speech costs of an unchecked copyright regime,” Hoehn’s attorneys wrote in Tuesday’s filing.

“Hoehn stood up for fair use – for free speech – and he prevailed,” his attorneys wrote of the Vietnam War veteran.

“At this point, the court must consider whether to grant Hoehn his attorneys’ fees as a `prevailing party,’” they wrote. “If the court fails to do so, a terrible injustice will be done, and the moral of Mr. Hoehn’s story will be that standing up for what is right will bankrupt you – so better to give your money to any bully with a summons in hand. The fact is, when Mr. Hoehn stood up for fair use, he stood up for all of us. His contribution to the public good should not be met with indifference.”

Instead of caving in to Righthaven’s $150,000 statutory damages demand and settling, Hoehn fought for the principal that his use of the column was a fair use as it was noncommercial and was aimed at stimulating discussion on an important public policy issue involving public employee pensions, his attorneys argued.

They’ve likened Hoehn’s use of the column to someone cutting a story out of a newspaper and pinning it on a community bulletin board for all to see – and Pro in his fair use analysis found the noncommercial nature of the post was a major factor in its protection as a fair use.

Righthaven, however, says its lawsuits are necessary to deter widespread infringements of newspaper material and in Hoehn’s case, it argued unsuccessfully that Hoehn’s use of the R-J column was more like a book club “where the participants were given unauthorized, free photocopies of an author’s book to read and discuss.”

Hoehn’s attorney say Righthaven, as a mass lawsuit filer, hasn’t properly considered when material can be used under the fair use doctrine.

For instance, it sued a reporter for posting a public court document, it sued the Democratic Underground for a post of four paragraphs of a 34-paragraph story, it sued another defendant for posting eight sentences of a 30-sentence article and judges have found there’s no way Righthaven can be damaged under the “market harm” test as there is no market for copyrights held by Righthaven, attorneys fighting Righthaven have noted.

“This pattern of conduct evinces Righthaven’s total disregard for even the notion of fair use, and that many of the republications it targets are not infringements at all. Instead, Righthaven was going to continue its campaign terrorizing people into making payments to it, and if they wanted to raise fair use as a defense, it would cost them dearly – as it has cost Mr. Hoehn. This cost should be shifted to Righthaven, as provided for by the Copyright Act,” Randazza Legal Group attorneys Marc Randazza and J. Malcolm DeVoy IV wrote in their filing Tuesday.

Righthaven hasn’t yet responded to Tuesday’s fee motion.


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