Colorado Judge Drills Righthaven and Awards Attorneys’ Fees–Righthaven v. Wolf
By Eric Goldman
Righthaven LLC v. Wolf, 1:11-cv-00830-JLK (D. Colo. Sept. 27, 2011)
Another judge, this time in Colorado, issued another stinging rebuke to Righthaven. This time it was Judge Kane in Colorado, and his decision will lead to the end of all of Righthaven’s pending cases in Colorado over the “TSA Pat Down” photo from the Denver Post. I assume Righthaven will appeal this ruling to the Tenth Circuit, but until then, it seems like its Colorado operations will be on hold.
Like other judges before him, Judge Kane dismisses Righthaven’s case for lack of standing due to an inadequate copyright assignment. Unexpectedly, Judge Kane doesn’t simply rely on the Ninth Circuit Silvers case or the other Righthaven precedent. Instead, because the case is in the 10th Circuit and not bound by the Silvers case, the court does a scholarly analysis of the standing issue from scratch. The judge walks through the 1909 Act, the 1976 Act, precedent cases and Constitutional considerations to conclude that the Copyright Act precludes the bare assignment of the right to sue for copyright infringement. The court then finds that Righthaven’s assignment from the Denver Post only procured that bare right to sue, despite self-serving language in the contract to the contrary. Some of the judge’s arguments were a bit odd, but the detail and care of the judge’s analysis substantially increases its odds of surviving the appeal.
The judge orders Righthaven to pay Wolf’s attorneys’ fees. As I’ve mentioned before, with every fee award against it, Righthaven’s profit meter keeps running in reverse. It wouldn’t surprise me if judges eventually award more fees against it than Righthaven took in through its settlements in total. However, none of the fee awards will matter if Righthaven is inadequately capitalized and thus continues to plead poverty. As its profit meter keeps running in reverse, Righthaven may have become a judgment-proof litigant itself. I expect that angry defendants with sizable fee awards are going to look for other parties who might pay the fees. MediaNews, you’re probably going to hear from some defendants; I hope you built that contingency into your budget. Wouldn’t it be ironic if defendants started sniffing around Steve Gibson’s home looking for assets to satisfy their fee awards?
As a final insult, Judge Kane makes it clear that Righthaven isn’t going to win in his court, even if they can get a reversal of the standing issue on appeal (see, e.g., FN 2 of the opinion). While this opinion wasn’t a flamboyant benchslap like Judge Hunt’s opinion in the Democratic Underground case, it was a stern rebuke nonetheless. It’s interesting how so many judges, effectively independently from each other, have each morally condemned Righthaven’s campaign.
A personal note: I know many folks get a thrill from watching Righthaven implode, but I must confess that I feel no schadenfreude. Yes, it’s fun (in a bloodsport way) to watch judicial benchslaps. Yes, of course, Righthaven has been a plague on our community, so having them driven out would be welcome relief. Yes, they have contributed to a nice body of defense-favorable precedent. Yet, using the powerful tools of our judicial system, Righthaven has imposed significant financial and emotional costs on hundreds of victims. I feel sad for the victims who have had to fight back for their rights at the peril of losing their homes, and I feel sad that we as a society have accepted a litigation system that allows a scheme like Righthaven to harm for ordinary well-meaning citizens trying to do the right thing. A judicial crushing of Righthaven is inadequate restitution for these victims, so I remain sad about the overall situation.
Just a reminder: one of my side clients did get sued by Righthaven and settled the case. I publicly disliked Righthaven before that happened, and I still dislike them today.
I’ll be off the rest of the week for the Jewish New Year. See everyone next week. To my Jewish readers: L’shana tovah!
Prior blog coverage of Righthaven: