The Righthaven Debacle, 5 Years Later
* Everyone associated with Righthaven avoided discipline by the Nevada bar regulators. Say what? I don’t have all of the facts, but based on what I saw, this is incredible. Numerous judges harshly criticized Righthaven’s litigation tactics (see, e.g., this benchslap using words like “flagrantly false,” “disingenuous,” “deceitful,” “brazen” and “egregious”), and I thought there was a chance some lawyers would lose their licenses for their involvement in this scheme. Instead, not even a single public reprimand. Wow. Exactly what does it take to violate Nevada’s ethics rules?
* the purported class action of Righthaven victims fizzled out with Righthaven’s demise.
* Steve Gibson, Righthaven’s principal, is still practicing law in Nevada. Indeed, he self-describes himself as “one of the premier business and intellectual property attorneys practicing in Las Vegas.” This makes me wonder: do his prospective clients not Google him???
* The mom of Colleen Lynn, an anti-Righthaven activist, called Righthaven’s campaign “legal terrorism.”
I’d add a couple of points to the five year retrospective. First, Righthaven’s litigation campaign imposed substantial personal cost on individual defendants, but society benefited overall from Righthaven’s litigation efforts. The campaign produced some favorable copyright jurisprudence, including:
* standing. The Righthaven jurisprudence clarified and reinforced that the right to sue for copyright infringement isn’t a commodity that can be freely bought and sold. Following the Righthaven rulings, I’ve seen other defendants win on standing grounds against enforcement entities who similarly lacked the proper rights. The funny thing is, as a drafting matter, standing problems are quite easy to avoid. I’m always amazed that Righthaven’s newspaper partners refused to give Righthaven a proper exclusive license to their content. It shows how little those business “partners” really trusted Righthaven.
* fair use. Righthaven made some great fair use law, including the possibility of fair use on a motion to dismiss and fair use for republishing an entire newspaper article. I always teach my students that fair use is an equitable defense, and Righthaven repeatedly messed up the case equities: it was an enforcement entity with no real rights to exploit the underlying work; it didn’t give defendants any notification before suing; it sued sympathetic small-time bloggers; and it demanded financially ruinous payments from them. It’s not surprising judges would twist an equitable doctrine against them.
Second, in the wake of the RIAA’s mass litigation flameout, Righthaven’s campaign reaffirmed that it’s hard to engage in mass copyright enforcement profitably. Of course, Righthaven didn’t provide an ideal test case to evaluate that market because Righthaven was a poorly constructed idea (suing mom-and-pop bloggers without notice) executed poorly (i.e., with dubious legal “expertise”). Still, Righthaven’s outcomes showed that the combination of fair use and fee shifts to the defendant show the hurdles that any mass enforcement agency must overcome to be profitable.
Despite the unexpected benefits we’ve gotten from Righthaven, I’m glad it’s gone. Thanks for the precedents, but good riddance.
* Copyright Trolling Is Really Hard to Do Profitably–Righthaven v. Hoehn
* Righthaven Hit With Another Fee/Cost Award, This Time Nearly $120k–Righthaven v. DiBiase
* Colorado Judge Drills Righthaven and Awards Attorneys’ Fees–Righthaven v. Wolf
* Resetting the Righthaven Fiasco (July-August 2011 Quick Links, Part 1)
* Righthaven Defendant Awarded $3,800 in Attorneys’ Fees–Righthaven v. Leon
* Recapping Righthaven Developments from the Past Two Weeks
* Righthaven Benchslapped in Ruling Saying It Lacks Standing–Righthaven v. Democratic Underground
* Another Defense-Favorable Righthaven Ruling–Righthaven v. Choudhry
* Republishing Entire Newspaper Story is Fair Use–Righthaven v. CIO
* Blogger Wins Fair Use Defense…On a Motion to Dismiss!–Righthaven v. Realty One