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Defendant Says Righthaven Should Pay Legal Fees 83

Hugh Pickens writes "On June 20 District Court Judge Philip Pro found that Kentucky resident Wayne Hoehn was protected by fair use in posting a Las Vegas Review-Journal column on a sports website. Now Hoehn's attorneys have submitted a $34,000 bill and asked that Judge Pro 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."
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Defendant Says Righthaven Should Pay Legal Fees

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  • Bout time (Score:5, Interesting)

    by Anonymous Cowar ( 1608865 ) on Wednesday July 06, 2011 @09:04AM (#36671012)
    I think that fee shifting should automatically be a part of any civil case. During the settlement, dismissal, or awarding process, the judge should be required to ask both sides if the bringer of the suit should pay legal fees, or a percentage of. As it stands, when you sue, most of the time you have nothing to lose and everything to gain if you get the right lawyer. Change that, break the cycle, and sanity might have a fighting chance.
    • But what happens when you try to sue a large company, and they win because of their superior, and extremely expensive lawyers?
      • What about SLAP(is it called that ?) ?? or something similar. I am not sure what SLAP is, but sometimes I saw people mention this, it's a way of dealing with rich and powerful adversaries in court.
        • Re:Bout time (Score:5, Informative)

          by DarkFencer ( 260473 ) on Wednesday July 06, 2011 @09:18AM (#36671130)

          SLAPP stands for Strategic Lawsuit Against Public Participation. Its meant to silence or intimidate critics, who may be completely accurate in what they are saying, just through legal costs. They don't even expect to go to trial, they expect to push a settlement through fear of legal costs.

          Someone who wins a case against a company/individual using SLAPP tactics definitely deserves to have their legal fees paid by the 'SLAPPer'.

      • by Anonymous Coward

        What happens is you lose the case. You should have had better lawyers, if you wanted to win.

        Expensive lawyers are expensive because they're good. Good laywers become expensive because they establish a record of winning.

        There's corruption in any human endeavour, jurispridence is no exception. But the system has many checks and balances and corruption is usually discovered and when it is, it is punished. In the long run, good lawyers aren't good because they cheat or bribe or know the secret handshake. T

        • Re:Bout time (Score:4, Insightful)

          by AngryDeuce ( 2205124 ) on Wednesday July 06, 2011 @09:50AM (#36671366)

          If your case is good but you can't afford or attract a good lawyer, well, sucks to be you.

          Yeah, that's awesome. Justice for those that can afford it, for everyone else, oh well, stop being so poor already.

          It's reasons like that why companies like Walmart are able to commit labor violations in every state with impunity, because they know no lawyer is going to touch any case against them unless it's egregious (i.e., results in serious injury or death) and/or a slam dunk, and their million dollar lawyers are able to ensure that pretty much no case against them is ever gonna be a slam dunk.

          • Re:Bout time (Score:4, Insightful)

            by Myopic ( 18616 ) on Wednesday July 06, 2011 @11:02AM (#36672002)

            Yes, but another way to say that is "the real world sucks, and a lot of people and businesses are assholes. Despite this, we want the common recourse to be disassociating from the assholes, and not griping in courts of law. Only egregious or slam-dunk cases should be brought before judges. For everything else, just stop being that person's friend, neighbor, customer, or employee. Our society is litigious enough."

            It's a sliding scale. The balance is hard to find because there are no bright lines.

            • Re: (Score:3, Insightful)

              by AngryDeuce ( 2205124 )

              For everything else, just stop being that person's friend, neighbor, customer, or employee.

              But how does that solve the problem of our legal system being used by the big dogs as an impediment to justice instead of facilitating it? There needs to be fairness in the courts. Like anything else having to do with our government anymore, all too often cases are decided not by what is just but instead by who has the most money to throw at the problem. Consider what happens whenever Apple's Lawyer Brigade fires off a Cease and Desist letter; a lot of the time, that in itself is enough to scare someone

            • by s73v3r ( 963317 )

              That may be, but this is one instance in which it doesn't have to be that way.

          • It doesn't really help that the rich often can stay rich and keep the poor poor because "The one who has the gold makes the rules", and often lobby and campaign and sometimes even outright bribe the political process to keep things that way.

            For example, subverting the trickle down process by hiring a shitload of H1-B's who are so poor they're willing to sell their souls for less than we'd demand for even an arm or a leg of a job.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          If your case is good but you can't afford a good lawyer, you might be able to attact one to work for a percentage. If your case is good but you can't afford or attract a good lawyer, well, sucks to be you.

          I'd like to tweak that slightly. If your case is good, but you can't attract a good lawyer, it probably wasn't that good.

          • by marnues ( 906739 )
            That's a nice sentiment, but it's really not very true. There are far too many variables other than seeking real justice.
          • by Uberbah ( 647458 )

            I'd like to tweak that slightly. If your case is good, but you can't attract a good lawyer, it probably wasn't that good.

            Attracting good lawyers generally requires money, thus putting you back to the parent poster's square one....

          • You can have a perfectly good case that a lawyer won't touch with a ten mile pole, if said case is "beneath them"

            A lawyer in the million dollar bracket for cases won't stoop to help you win a 10k lawsuit.

            You may also have a lawyer the system has by the balls and he can't really dare to side with you. If the company you wish to take action against has somehow corrupted the system, such as by having shills on the local bar association, even a slam dunk case may be risky to even touch.

          • by Gloizen ( 914313 )

            What if you, and dozens of people like you, were ripped off for $1k - $2k by a small fraudulent corporation, and you have solid evidence to prove it? Lawyers typically charge at least $3k to go to trial, so they'll tell you that you have a good case, but that it doesn't make financial sense for them to represent you. Most lawyers (understandably) won't consider a class action lawsuit unless there are $ hundreds of thousands at stake and a high chance of winning.

            But if you try to bring your go

            • That is called small claims court and does not require a lawyer.


              They have a limit of 15k (generally) and require that neither party is represented by a lawyer.

              • by Gloizen ( 914313 )
                Of course you file initially in Small Claims Court. The problem is that the corporate defendant will usually exercise its right to remove the case from SCC so that it can be represented by a lawyer.
        • by Luckyo ( 1726890 )

          Some countries employ investigative judges, who actively investigate the case themselves, rather then actively limit themselves to what lawyers of each party bring before them (and how).

          This system has some issues of its own, such as activism among judges, or easier succumbing to corruption, but it most certainly addresses the case of fair representation far better.

      • Re:Bout time (Score:5, Interesting)

        by Jason Levine ( 196982 ) on Wednesday July 06, 2011 @09:39AM (#36671284) Homepage

        Perhaps, then, legal fees should be capped at 2x the rate that the losing side is paying. This way if you're paying $5,000 for legal representation and they're paying $1,000,000 (just to pull numbers out of thin air), you'll be responsible for $15,000 ($5K for your lawyer and $10K for theirs).

        • Then large companies would begin paying lawyers low retainers/fees, but with tons of benefits. Thus even if you win you'd only get twice minimum wage for your lawyer fees.

          • by vux984 ( 928602 )

            Then large companies would begin paying lawyers low retainers/fees, but with tons of benefits

            The IRS has managed to figure out how to audit such things as "benefits" for the purposes of taxing it as income. The methods and expertise to do this already exists.

      • I see what you are saying and I think any such law should have something to address that problem -- specifically that such a case cannot exceed that which the plaintiff has paid for its representation or a reasonable value by fair market standards.

        That's where this stuff gets kinda tricky though doesn't it? What if someone sued a drug company and to make their defensive case, they hire not just lawyers, but outside labs to perform studies and all sorts of things like that.

        It's really difficult to make law

      • They you're a fool, and easily parted from your money.

        If you want legal representation to be either prohibited or court appointed in order to level the playing field, then fair enough, but that's a very different argument.

      • by AJH16 ( 940784 )

        Just put a limit on the amount you can be asked to pay back based on how much you yourself put in to it. If I sue, say Sony, for removing features from my PS3 and only pay $5000 on a lawyer, then my risk would be limited to having to pay say $6000 of Sony's legal fees since using $100,000 of lawyers fees would be a rather excessive defense to my $5000 lawyer.

        • by Anonymous Coward


          Not done much litigation lately I'm guessing?

          • And you think Sony's only paying their lawyers $100k? That'd barely cover Friday's donuts.

            It's called a 'hypothetical example.'

            Would you have instead preferred "spent $x on my lawyer, my risk would be $1.2x because their $20x lawyers would be an excessive defense"?

      • The sensible option to me would be to have fee shifting limited to the amount you spent on your own lawyers, possibly plus interest if it was a lengthy trial.

      • How about each party in a suit is only allowed to have as much representation as the other? If $SmallGuy can only afford one lawyer, then $LargeCorp only gets one lawyer. If $LargeCorp wants to have five lawyers, then they foot the bill for $SmallGuys extra four.
        • Re:Bout time (Score:4, Insightful)

          by NevarMore ( 248971 ) on Wednesday July 06, 2011 @10:45AM (#36671900) Homepage Journal

          That would lead to lousy legal decisions. Except in cases of large corporation versus large corporation you'd wind up with legal cases being argued by Billy the Intern and Asok the Recent Graduate. Here in the US where case law is the real law, poorly represented cases can have devastating consequences to future suits.

      • But that's not the usual case. Usually the trouble is big companies suing here and there because even if they lose they can financially bleed their opponent to death.
        In other countries, loser paying court costs is the standard practice.
        Given that a victory in a lawsuit is supposed to represent that the side was right, why should it ever be that the "winner" , in these cases defendant, in a lawsuit ends up in a worse situation than before he won?
        It essentially reduces to someone being legally able to
        • by Uberbah ( 647458 )

          But that's not the usual case.

          When you're Joe Shmoe suing a successful business, much less a corporation, it's always going to be the case as 1) the business has more money and 2) the business can write off attorneys fees as a business expense.

          • No , i meant there are more cases of companies abusing this and screwing normal people than normal people with legitimate lawsuits who lose them (and thus would get screwed over by the new system)
      • Loser pays should be the default, but with teh judge deciding the appropriate proportion the loser should bear. If you significantly outspend your opponent in order to win you may not receive 100% of your fees.

        Similar principle is applied int he UK; all sides are *required* to mitigate costs before and during a case. Hiring a QC for a small civil dispute is unlikely to see you receive all your costs back.

        • In south africa its slightly different. The arguments presented during trial/hearing can end with a an argument for costs (It must start with it as part of the pleadings). During judgement, the judge hands down his/her decision and also orders someone (if any) to pay costs (No value specified, simply "costs on an attorney/client scale").

          The winner then takes his itemised legal bill to a /taxing master/ who examines it and makes sure its in line with what the court thinks a lawyer should charge. The taxin
      • by tlhIngan ( 30335 )

        But what happens when you try to sue a large company, and they win because of their superior, and extremely expensive lawyers?

        Make the "loser pays" amount take into consideration the resources of the loser. If a rich guy (or corporation) sues some poor sap and the poor sap loses because he only got a "free" lawyer, then the rich guy gets basically nothing because the loser has no resources to pay.

        But if the poor guy wins, the poor guy's lawyer gets probably way more than their standard legal fees because th

      • Yes. The fee should be capped.

        Really that's overly complicated. A better suggestion would be that the plaintiff pays an equivalent of their legal fees to the defendant if they lose.

        Although loser pays is the system just about everywhere else, and they don't seem to have this problem. Individuals successfully sue large companies all the time.
    • Re: (Score:1, Insightful)

      by Seumas ( 6865 )

      I hear this suggestion all the time and I don't see how it solves the problem whatsoever. As it is, people can't afford to defend themselves even against the most simple and obvious cases that should be open and shut in their favor. Requiring the loser to pay accomplishes nothing. Big businesses and organizations can currently afford lawsuits more than individuals or small businesses and they can afford to pay for your and my shitty lawyer in the event that their attempts to intimidate you through the court

      • Re:Bout time (Score:5, Informative)

        by Sique ( 173459 ) on Wednesday July 06, 2011 @10:37AM (#36671804) Homepage

        In Germany the plaintiff has to name the whole value for the case (it's called "Streitwert", amount in dispute), and all the lawyer's fees are set according to a fixed table in relation to that number. The percentage of the "amount in dispute" that gets finally awarded is taken as a measure for how successful the plaintiff was, and the lawyer's fees are then awareded according to that percentage. So if you are suing for 1 million and get 10 thousands in the end, you are considered 99% unsuccessful, and you have to pay 99% of the lawyer's fee for both sides.

    • by jhoegl ( 638955 )
      In a perfect world this would work.
      but what if you are the person who was wronged and feels the only way to get justice is through a lawsuit. However, if you had to go up against a large corporation, would you really do it with this kind of stipulation hanging over you?
      • Re:Bout time (Score:5, Insightful)

        by Rogerborg ( 306625 ) on Wednesday July 06, 2011 @09:50AM (#36671368) Homepage

        For every Harry Hardluck with a genuine grievance against Goliath Megacorp, there are dozens, hundreds, of Deborah Dickburgers signing their names on to pro-forma blackmail demands from the firm of Shark, Shyster and Slitpurse. The real solution is for courts and bar associations to sanction the most egregious hustlers, but making Debbie think twice before being party to their antics would be a good first step.

        • ... from the firm of Shark, Shyster and Slitpurse.

          One of my favourite lines from Breaking Bad []: "You don't want a criminal lawyer. You want a criminal lawyer."

        • Re:Bout time (Score:4, Informative)

          by Uberbah ( 647458 ) on Wednesday July 06, 2011 @02:46PM (#36673776)

          Well, if you like cutting off your nose to spite your face, I suppose you could see it that way. Because your viewpoint relies on the "Jackpot Justice" myth, which is just that - a myth []. Actual frivolous lawsuits are actually dismissed at trial. Don't be a chump for corporate immunization from accountability.

        • by dkf ( 304284 )

          the firm of Shark, Shyster and Slitpurse

          And there I was thinking it was Dewey, Cheetham and Howe.

    • by AJH16 ( 940784 )

      A better idea might be to have a discussion of the legal fee structure prior to the start of litigation. Another option would be to have a cap on how much the group or person bringing the suit based on how much they spend on their legal team. The idea being that it should be possible to mount a reasonable defense for close to the same amount as being spent on fighting for the suit.

    • Right now, the trial bar and lawyers in general have a stranglehold on governments and they won't want to do anything that jeopardizes their revenue streams. Healthcare cost go up largely due to the lack of tort reform. Drugs are expensive in this country because the companies are building in the cost of a future lawsuit. OB-Gyn's have completely moved out of some cities because the malpractice insurance costs are stupid high. The "english" system of loser pays makes a lot of sense. That being said, wh

      • by imric ( 6240 )

        Problem with that is that 'tort reform' is generally code for 'no penalty for malfeasance and pain and suffering are worth nothing'. IOW, if a doctor cuts off your balls instead of cutting out your appendix he would be on the hook for the cost of the operation. A company that dumped poison on a park that killed children would be on the hook for cleanup and funeral costs. And so on.

      • by bk2204 ( 310841 )

        The state of Texas adopted an amendment to its constitution to limit damages in certain cases because the health care industry claimed that costs, including malpractice insurance, were too high. Years later, malpractice insurance has not gone down significantly. It never did. Texas has enacted laws aimed at tort reform as well, and those have been similarly unsuccessful in lowering costs.

        I understand that there are people that exploit the system, but the techniques you describe are ineffective and actually

      • by s73v3r ( 963317 )

        Healthcare cost go up largely due to the lack of tort reform.

        Wrong. Studies have shown that Tort Reform is not the panacea people bring it up to be. In comparing the costs of procedures in various states with and without tort reform, the presence of Tort Reform had no statistical impact upon the price.

      • Re: (Score:3, Informative)

        by scot4875 ( 542869 )

        Healthcare cost go up largely due to the lack of tort reform.

        Popular Republican talking point, but factually incorrect. Tort reform would certainly save some money, but it's not even close to being a major source of waste.

        Drugs are expensive in this country because the companies are building in the cost of a future lawsuit.

        Also bullshit. Drugs are expensive in this country because of the obscene profit margins and the equally obscene amount spent on advertising. Reduce those to more normal levels and drugs could easily cost less than half of what they do now.


      • Re: (Score:3, Informative)

        by AngryDeuce ( 2205124 )

        Drugs are expensive in this country because the companies are building in the cost of a future lawsuit.

        Drugs are expensive in this country because there are no checks on drugs prices.

        If the drugs were expensive because of a high cost of production, then they would be expensive regardless of the market they're being sold in, but that's not the case. The same drugs that cost $5.00 per pill here are sold for the equivalent of .50 cents in other countries, because the $5.00 price point would price it out of the market there. It's the same reason why a DVD of a particular movie costs $20 here in the states, but

      • by sjames ( 1099 )

        Healthcare is expensive because big pharma is granted exclusivity without any sort of restraint on pricing for things you often can't just decide to live without.

        For example, colchicine. It's been used for gout and various other ailments for nearly 200 years in it's purified form and since before Christ in a less refined form. Since it pre-dated the FDA, it was grandfathered in without an approval process. In 2008 it cost 9 cents a pill or about $5/month for gout treatment.

        In 2009, URL Pharma completed some

    • Agreed. Without this any company that has a legal team can just start suing any citizen that crosses it, regardless of whether they hope to win or not, just to stick them with legal fees. Great way to bully customers into submission - "Oh yeah, you're going to post a bad review about us online? We're suing you, have fun paying those legal fees."
  • I like this as it would discourage these particular trolls from their 'income dragnet' of just accusing as many people as possible.
  • It's only a matter of time before they get to a judge who is either in the pocket of the IP mafia, or who was appointed by a politician who's in their pocket. He'll put an end to all this "fair use" nonsense.

  • by Anonymous Coward

    One thing about copyright laws is that the prevailing party in a copyright suit is entitled (as a matter of law) to attorney fees, as well as costs. Learned that from the NYCL.

    • by cpt kangarooski ( 3773 ) on Wednesday July 06, 2011 @09:54AM (#36671392) Homepage

      Well, not quite entitled:

      In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorneyâ(TM)s fee to the prevailing party as part of the costs.

      17 USC 505.

      It's up to the discretion of the court, it's limited to a reasonable amount, rather than the actual amount, and under some circumstances (e.g. an ordinary infringement suit where the copyright wasn't registered in a timely fashion, and the plaintiff prevails) fees are not available at all.

      • so someone deemed to have started [frivolous] lawsuit, pays the court fees for the defendant. if you/company simply [loses], everything stays as normal. ex: if you are filing in east texas and lose because you dont have a leg to stand on, then you get slapped with the fees from the defendant.
  • While the defendant won on fair use, the summary does not say that defendant would have won on lack of jursidictional grounds in that Righthaven did not have rights to sue when they filed the lawsuit in the first place.
  • They will just bankrupt/shut down the company and open another one. The people perpetrated this shit, will not be prosecuted. So ?
    • by bk2204 ( 310841 )

      One of the articles pointed out that the EFF has filed complaints of barratry and champerty against Righthaven. Lawyers that file suits that they should know to be baseless (barratry) to try to exercise rights that they should know the plaintiff doesn't have (champerty) are very likely to be sanctioned or disbarred.

  • by Fujisawa Sensei ( 207127 ) on Wednesday July 06, 2011 @10:10AM (#36671514) Journal

    Simple solution, nationalize the legal system.

  • More importantly, the judgment found something glossed over in the summary -- the court did not recognize Righthaven as an entity that had any significant rights in the copyright, and therefore could not sue in the first place.

    That's because the agreement with Stephens Media was so specific in carving out Righthaven's rights to the copyright that the only right they really had, according to the court, was the right to sue others to protect the copyright. This is not a recognized transferable right.

    That's a

    • Actually I think you could assign the copyrights for the sole purpose of suing others. What the judge found in this case was that Stephens Media didn't assign the copyrights. They retained ownership of the copyrights themselves, assigning only the right to sue without assigning any of the copyrights in question.

      • by marnues ( 906739 )
        Seems to be exactly what the GP said. Only you missed the part where Stephens Media thought they could do that.
        • Seems to be exactly what the GP said. Only you missed the part where Stephens Media thought they could do that.

          Not quite.
          GGP -> "You cannot assign the right to sue without assigning copyright"
          GP -> "Fine, simply assign copyrights for the sole purpose of suing."

          • Not quite. Stephens Media would have to assign the copyrights, period. Or grant Righthaven an exclusive license to eg. publish the stories. Basically, for Righthaven to gain standing Stephens Media would have to give up some or all of their rights to those works and hand them over to Righthaven. And, as the court said, the "right to sue" is not one of those rights.

            Think of it like the light from a flashlight. The light doesn't exist independently of the flashlight. If you want to give someone the ability to

    • Yup, this ruling has pretty much cut off at the knees what could have been an insanely dangerous new kind of business model. I hope Righthaven gets countersued into a black hole.

  • ... and get the democrat bloggers all riled up, I wonder how far Righthaven would have made it.

    They also sued a bunch of other personal blogs, not just that political website. I hope Righthaven eats it in court and has to pay their legal fees. One of the bloggers they sued is known to me, and he's really been hit hard by it. Democratic Underground? Sure, to a point, but they very easily raised some funds. My friend? Not so easy...

  • You really want to mess with corporations out spending the little guy. The fix would be everyone is randomly assigned 1-2 lawyers and that is it. You could even make it a little better and have lawyers list their specialties and pull randomly from that pile for legal cases. It would instantly cause these out spend you into the poor house cases to disappear. It would also mean you better have a pretty good case and be pretty sure you can win because you don't know what lawyer you are going to get.

    The other t

Each new user of a new system uncovers a new class of bugs. -- Kernighan