Righthaven vs. Michael Nystrom / Daily Paul DISMISSED by Federal JudgeSubmitted by Michael Nystrom on Thu, 03/17/2011 - 14:30
by Michael Nystrom | March 16, 2011
Last Tuesday U.S. District Judge James C. Mahan ordered the dismissal of Righthaven's lawsuit against me and the Daily Paul. As you may recall, copyright troll and legal terrorist Righthaven sued me on August 31st of last year, demanding $75,000 and forfeiture of this domain name to them. I first learned of the action from Steve Green of the Las Vegas Sun, Las Vegas's good newspaper. Righthaven itself is a partnership between seedy Vegas lawyer Steve Gibson and Vegas's evil newspaper, the Las Vegas Review Journal. They have combined forces to shakedown unsuspecting bloggers in a last gasp attempt to secure revenue for the dying newspaper industry, using a suspect "business model" that goes like this:
Step 1: Righthaven uses its "proprietary technology" (probably Google) to look for potentially infringing LVRJ content that has been reproduced on third party blogs or websites. In my case it was less than half of an article by a faux libertarian LVRJ columnist that was uploaded to the Daily Paul by a member of the DP community.
Step 2: Righthaven puffs itself up like the paper tiger that it is, filing a lawsuit against the site owner for a ridiculous sum, and forfeiture of the domain name. I was lawsuit victim #112. To date Righthaven has sued 250 bloggers and site owners, and have expanded operations to include images, while inexplicably upping their demands to $150,000. While there is no provision in the Copyright Act that would hand over control of a website domain to the plaintiff, Righthaven asks for it anyway because that's how they roll. The bully Righthaven has sued many hobbyists -- bloggers with few site visitors, even fewer resources and a likely ignorace of the law.
Step 3: Righthaven roughs up the defendant, like the bully that it is: "Pay up or else! Or else you're going to lose the lawsuit and owe us $150,000! We're going to get your website!" Of course, nothing could be further from the truth if any of the cases were actually litigated in a court of law. But who can afford to fight these days? The cost to defend oneself in a jury trial in Federal court with a proper defense lawyer starts at around $10,000 and stretches all the way to infinity. Copyright law - especially in regards to the internet - is murky territory because it is so new. Any judgment for a defendant is bound to be appealed by Righthaven, all the way to the Supreme Court. Their entire "business model" depends on it.
Step 4: Righthaven goes for the shakedown, like the thug that it is.
Righthaven understands very well the economics of the situation -- it is the foundation of their 'business model,' after all -- so after roughing up the poor webmaster and scaring the daylights out of him, they play "nice." "We'll get out of your hair, chump, if you just pay us. No court fight, just pay. You can keep your website, and we'll go away, nice."
In their very first case against NORML, Righthaven settled for just $2,185 after being out-dueled by First Amendment superstar Marc Randazza. (Randazza beat Glenn Beck in a 2009 case, a fact that immediately endeard him to my heart).
All settlements since NORML have been confidential, but Brian Hill, the autistic hobbyist blogger sued by Righthaven for $150,000, revealed that they're looking to collect $6,000 from him. Dana Eiser, the Tea Party blogger, revealed that Righthaven is getting bolder still, now asking for $15,000 in go-away money. This for reprinting an "Open Letter" (!!!) to the Tea Party from the Denver Post (Righthaven's newest partner). Eiser argues that by definition "an open letter [is] not copyrightable."
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When I learned that Righthaven was after me last summer, I talked to multiple attorneys, and each advised me that it was in my best interest to settle. Sharon Angle was sued and settled. Matt Drudge was sued and settled. The Free Republic was sued and settled. Even Alex Jones - Alex Jones of all people - was sued and settled!
This is the simple economic calculation that Righthaven was counting on. I did not want to settle. I was determined not to pay Righthaven a cent, and I didn't.
But a funny thing happened on my way to the courtroom. Like a deus ex machina, just a few days after the suit against me was filed, the Electronic Frontier Foundation (EFF) jumped into the fray, and began looking for an ideal case to defend. I contacted the EFF with my details, and hoped and prayed that my case would fit their criteria. It was close, but ultimately the EFF chose to defend the Democratic Underground (DU) in a case that was similar to mine, but even easier to win.
As in my case, the DU's site owner did not upload the content, the deed was done by a user; a link back to the original was provided; and only a portion of the article was copied, not the entire piece. In my case, that portion amounted to just under half of the article, but in DU, it was just a few sentences. (Full details here)
After having prepared my legal defense with Dan Booth of Booth Sweet LLC in Cambridge, who came highly recommend from both the EFF and Marc Randazza, I waited for the first shots to be fired. In order for the action to commence, Righthaven had to physically serve me with the lawsuit.
Service never came.
I belive this is because 1) Righthaven is sloppy (they forgot to renew their own business license at the beginning of the year, so busy were they suing bloggers), and, importantly, 2) the EFF absolutely bludgeoned Righthaven in its answer and counterclaim on behalf of the Democratic Underground. The EFF pulled out all the stops, while at the same time roping the LVRJ and its publisher, Stephens Media, into the countersuit! (Read in full here. I never knew reading legal briefs could be so much fun!) Righhaven is currently crying like a baby over this, begging desperately to be let out of their own suit, like the cowards that they are.
As a direct result of this bludgeoning, in November 2010, Righthaven announced it would stop suing over partial news excerpts (like the one that got me sued). By early December, I still had not been served, nor had I heard anything from Righthaven. At the end of December, their 120 day window to serve me expired. The court clerk filed an intention to dismiss on January 26th, 2011, effectively giving Righthaven one last chance to either sh*t or get off the pot, neither of which they did. The order to dismiss finally came last Tuesday, March 7, 2011, soon after which, I had a celebratory beer with my attorney Dan Booth.
Legal observers will note that the suit was dismissed without prejudice, meaning that Righthaven could, theoretically, refile the suit against me within a three year statute of limitations. But at the moment, they seem to have their hands full. Very full. The terms of the copyright assignments between Righthaven and Stephens Media - which to this day remain a mystery - are being seriously questioned by the EFF. This very well may spell the end of Righthaven and their frivolous suits. One can only hope.
At any rate, this ends a long, grueling ordeal for me, and another chapter in the history of the Daily Paul. At the very least, I am pleased to say that Righthaven lost money, not me. Additionally, it was another period of learning and growth during which I made some very meaningful personal connections.
My heartfelt thanks to Steve Green of the Las Vegas Sun, Marc Randazza, Dan Booth, and Colleen Lynn, the owner of RighthavenVictims.blogspot.com, which is an excellent resource for victims, as well as those who wish not to become victims! If you own a blog, I urge you to check out the section: How to Avoid a Lawsuit