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Copyright Troll Complains of Defendant's Legal Fees 138

Posted by Soulskill
from the anybody-have-a-tiny-violin dept.
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."
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Copyright Troll Complains of Defendant's Legal Fees

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  • by Sonny Yatsen (603655) * on Friday March 11, 2011 @08:54AM (#35452144) Journal

    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.

    • by Sonny Yatsen (603655) * on Friday March 11, 2011 @08:55AM (#35452152) Journal

      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.

      • by devxo (1963088)
        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.
        • by ginbot462 (626023)

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

        • by Chrisq (894406) on Friday March 11, 2011 @09:24AM (#35452364)

          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

          • by Alex Belits (437) *

            s/Nazi/Texas/

          • by niado (1650369)

            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.

        • by Compaqt (1758360)

          >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?

          • 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.

            • by Compaqt (1758360)

              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 bi

            • 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

          • 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.

          • by tepples (727027)

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

            Google has an far easier defense under OCILLA [wikipedia.org] 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.

        • by asdf7890 (1518587)
          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 los
      • 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.

    • by 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.

      • 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.

      • by s73v3r (963317)

        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.

      • 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 a

    • by Jason Levine (196982) on Friday March 11, 2011 @09:33AM (#35452440)

      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.

      • by jez9999 (618189)

        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?

        • by Alex Belits (437) *

          You have two guesses.

        • 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.
      • by s73v3r (963317)

        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.

        • by Sique (173459)

          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.

        • 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).

        • by sjames (1099)

          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.

    • 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.
      • 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

      • 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

    • by RockDoctor (15477)
      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 g

  • by erroneus (253617) on Friday March 11, 2011 @09:06AM (#35452228) Homepage

    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.

    • 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.

      • by Coren22 (1625475)

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

        • by nomadic (141991)
          Why not? Tort and med mal reform has nearly killed attorney's fees in certain areas.
          • by Coren22 (1625475)

            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...

            • by nomadic (141991)
              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 beli
              • by Coren22 (1625475)

                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 alwa

                • by nomadic (141991)
                  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?
    • by hairyfeet (841228)

      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

      • by s73v3r (963317)

        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.

      • by Quirkz (1206400)
        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?
        • by AK Marc (707885)
          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.
        • by hairyfeet (841228)

          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,

    • by s73v3r (963317)

      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.

  • by Alex Belits (437) * on Friday March 11, 2011 @09:06AM (#35452232) Homepage

    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).

    • Many places have anti-SLAPP [wikipedia.org] 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.

      • by Alex Belits (437) *

        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 foremos

        • 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 t

          • by Alex Belits (437) *

            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, a

  • by Livius (318358) on Friday March 11, 2011 @09:07AM (#35452236)

    "[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.

    • by thsths (31372)

      > "[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...

    • by somersault (912633) on Friday March 11, 2011 @09:14AM (#35452300) Homepage Journal

      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.

      • 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 Righthave

        • 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

    • by 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.

      • 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.

        • by zQuo (1050152)
          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.
  • 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.

    • 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.

    • by sjames (1099)

      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).

  • by Drakkenmensch (1255800) on Friday March 11, 2011 @09:07AM (#35452246)
    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.
    • by Myopic (18616)

      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 sho

      • by inviolet (797804)

        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.

  • good! (Score:3, Informative)

    by llung (1841162) on Friday March 11, 2011 @09:08AM (#35452254)
    A taste of their own medicine is just what they deserve.
    • 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.

  • by dkleinsc (563838) on Friday March 11, 2011 @09:19AM (#35452336) Homepage

    "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."

  • by Ice Tiger (10883) on Friday March 11, 2011 @09:27AM (#35452388)

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

    • 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.

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

    Good luck to DU.

    • by Shotgun (30919)

      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.

  • 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.

  • by nomadic (141991)
    "'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.
    • by nomadic (141991)
      Actually wait, that might have been for litigation fees. I need to look into this. Still stupidly high though.
  • Stand up to the corporate whores. DU, stand strong against these capitalist assholes.

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