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Tuesday, March 15, 2011

Media Bloggers Association Stands Up To Righthaven


Attorney Ronald Coleman Filed An
Amicus Brief On Behalf Of Bloggers
David Makarewicz

Today, the Media Bloggers Association ("MBA") filed its Reply Brief in the Righthaven, LLC v. Hyatt case.  The MBA is opposing Righthaven's attempt to convince the Nevada District Court to award it $150,000 in damages, the domain name for blogger Bill Hyatt's website (1ce.org)  and attorneys' fees.

Hyatt was sued by Righthaven last October after he allegedly copied a Las Vegas Review-Journal column titled "FX's Manly Man Shows Hold Outsider Appeal."  When Hyatt did not respond to the lawsuit, he was defaulted by the court clerk's office.

A default is basically the equivalent of an admission of all liability by the defendant.  If the default is not set aside, the Court will skip the trial on the merits of the copyright claim and proceed directly to a determination of the damages against Hyatt.

The MBA, a national bloggers organization, filed an Amicus Brief last month against Righthaven.  An Amicus Brief is filed when an organization such as the MBA is not a party to a lawsuit but asks for permission to file a brief as a "friend of the court" that can offer arguments or information to assist the court in making its decision. 

In its briefs, the MBA has argued three main points on behalf of bloggers such as Hyatt:

1.  Righthaven is not a legitimate copyright holder because Righthaven publishes nothing itself and only acquires the assignment of rights to the materials after discovering a copyright infringement that will provide the basis for a lawsuit.  Further, the MBA hints that the wording of the assignment of the rights might include a "reversion" that will restore the property rights to the Las Vegas Review-Journal after the lawsuit is concluded.

2.  The Las Vegas Review-Journal is violating Nevada law by “selling lawsuits” to Righthaven.  The MBA argues that if it is not selling lawsuits, the only alternative is that Righthaven is "simply a law firm in disguise, engaged in champerty."  Champerty is where someone without an interest in a lawsuit makes a financial arrangement by which it will fund the suit in exchange for a share of any verdict or settlement.  Most jurisdictions do not permit the practice.

3.  $150,000 and the loss of a domain name are grossly unfair damages that would violate the Due Process clause of the Constitution.  Among other protections, the Due Process clause ensures that a defendant normally is not required to pay damages beyond the amount the plaintiff actually suffered as a result of the defendant's actions.  In this case, MBA argues that the court should limit damages because of the public interest in citizen journalism and the fact that Hyatt was, at worst, an innocent infringer.  The MBA goes even further with its argument against awarding Hyatt's domain name to Righthaven because of the tremendous value of a domain name and Nevada's laws that prohibit a court from awarding personal property in a copyright case.

Righthaven has opposed the MBA's request to file the Amicus Brief and asked the Court to block the MBA from participating in the proceedings against Hyatt.  The Righthaven opposition filing stated, "MBA is by no means a friend of the court.  MBA is clearly acting in an adversarial capacity in defense of a defendant against whom default has been entered." 

The MBA has responded that it is only interested in preserving the rights of the bloggers in its organization, not to act as a secret attorney for Hyatt.  In its Reply, the MBA stated, "Contrary to the insinuation by Righthaven, there is no alliance between [the MBA] and Defendant Bill Hyatt."

Internet publishers need to continue to pay close attention to the rulings that come out of all of these Righthaven cases.  The average blogger does not have the resources to simply buy his way out of a lawsuit like Drudge did last month.  Therefore, it is critical to know exactly what the law will and will not permit him to do with other sites' words and photos and exactly what the consequences will be if he ignores the law.

It is unfortunate that Righthaven and the companies it "buys" the copyrighted property from are willing to financially wreck a person, often for mere carelessness as they are attempting to add to the public conversation.  However, if there is an upside, it is that the challenges to these lawsuits, such as this one by the MBA, will hopefully give the Courts the opportunity to create a workable set of guidelines for Internet copyright that eventually puts an end to the uncertaintly that allows these extortion schemes to succeed.

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