Righthaven LLC copyright infringement lawsuit defendant Brian D. Hill's attorneys filed a 56-page motion for dismissal on Monday -- and as a kicker asked the court to require Righthaven to pay their fees as a penalty.
This is just the latest chapter in what has turned out to be a public relations nightmare for Las Vegas-based Righthaven, which enforces copyrights for the Las Vegas Review-Journal and the Denver Post and has filed 250 lawsuits in the past 12 months.
Hill is a 20-year-old North Carolina blogger sued by Righthaven over a Denver Post TSA pat-down photo -- one of at least 46 website operators sued over that photo.
Righthaven's problem with Hill is tied to its policy of suing first and asking questions later.
After he was sued for $150,000 and forfeiture of his website domain name, Hill went public by saying he has disabilities including diabetes, hyperactive attention disorder and mild autism -- and that Righthaven still demanded $6,000 to settle his case.
This attracted media attention in Denver, North Carolina and Virginia. Hill was also interviewed for a national Associated Press report about Righthaven and the international group Reporters Without Borders appealed to the Denver Post to call off the lawsuit.
Righthaven and the Denver Post likely would love to see Righthaven's lawsuit against Hill go away ASAP -- but now Righthaven may either have to pay Hill's attorney's fees or prove to a federal judge in Colorado why its lawsuit was not filed in "bad faith, vexatiously, wantonly or for oppressive reasons.'"
"An award of attorney's fees is appropriate," Hill's attorneys David Kerr and Luke Santangelo of Fort Collins, Colo., wrote in their motion for dismissal filed in federal court in Denver. "District courts possess inherent power to manage their affairs and to prevent abuse of the judicial process.
"A court may assess attorney's fees when a party has `acted in bad faith, vexatiously, wantonly or for oppressive reasons,'" they wrote.
"Righthaven’s factual and legal deficiencies have been laid bare. The full scope of its ... 'negotiation' with Mr. Hill may need to become an issue," Hill's attorneys said in the filing.
"Righthaven simply cannot reasonably and diligently litigate or even engage in substantive settlement negotiations for all of the cases that it has brought in a manner that does not prejudice defendants and unnecessarily drain limited judicial resources," the attorneys wrote.
"For example, it has been alleged, and in one case confirmed by Righthaven’s counsel, that it brought at least two separate cases before this court against the wrong party. Using assembly-line litigation methods coupled with inadequate jurisdictional and factual due diligence and achieving profit-generating settlements from the disadvantaged appear to be its key motivation," the attorneys wrote.
"Righthaven does not operate a newspaper or otherwise profit from the subject photo, outside of its litigation-for-profit business model, which actually benefits from more, not less, infringement. Such behavior should not be encouraged, but deterred by this court. Righthaven should be ordered to pay, as a `proper penalty,' reasonable attorney’s fees incurred to defend Mr. Hill from this action," they wrote.
Righthaven hasn't yet commented on Hill's case other than in a court filing saying it was in settlement discussions.
As to the merits of Hill's motion to dismiss -- or at least move the case to North Carolina so Hill doesn't have to travel to Colorado for court hearings -- Kerr and Santangelo argued Hill found the photo at issue on the Internet after it went viral and that the images he saw included nothing to indicate that it was protected by copyright or came from the Denver Post.
The motion for dismissal also includes a flood of allegations against Righthaven and threats to drag the Denver Post in to the litigation.
For instance, Hill's mother, Roberta, said in a court declaration that "as a result of the stress of the current pending lawsuit, my son's health has steadily declined, placing him at risk of a serious, perhaps life-threatening medical event."
Like most -- if not all -- Righthaven defendants, Brian Hill did not receive a takedown order or request over the photo. Instead, he first learned there was a concern about the photo and that he was being sued when he was contacted by the Las Vegas Sun about the lawsuit.
The Hills then contacted Righthaven and Roberta Hill said in her declaration: "Counsel for Righthaven offered to let Brian out of the lawsuit only for an amount that was far, far beyond our means, and he told us that defending the case would cost much more than the settlement amount."
"Righthaven refused to dismiss the case based on Brian's medical and/or financial condition," she wrote.
The only income for she and her son consists of $8,000 in annual Social Security disability payments, Hill's filing said.
The motion goes on to charge:
• "Righthaven might ... be in a potentially champertous and barratrous relationship with MediaNews Group Inc., the parent corporation of the Denver Post Corp., to serve as a proxy plaintiff against defendant Brian D. Hill -- as well as hundreds of other similarly-situated persons across the country."
• Righthaven "lawsuits are primarily directed to small personal blogs, or other non-profit sites, where flummoxed and overwhelmed defendants, are presented with a simple devil's bargain -- settle with Righthaven for several thousand dollars, defend yourself pro se or hire an attorney and spend exponentially more attempting to defend against such allegations."
• "Righthaven, which is believed to neither reproduce, sell, market, distribute, or otherwise deal with the work in question, now claims it has been 'irreparably' damaged and seeks redress. This is despite the fact that to this day the photo in question appears on The Denver Post website for free, and with an automated option to 'share this gallery' and an identification suggesting ownership by The Denver Post, not Righthaven."
• "Righthaven’s pleadings contain insufficient copyright ownership allegations sufficient to support a cause of action."
• Righthaven's standard lawsuit demand for forfeiture of Hill's website domain name is not authorized by the Copyright Act and would violate the First Amendment.
"Righthaven’s demand for domain name transfer offends the First Amendment and must not stand. Such a request amounts to nothing more than an attempt to intimidate ill-informed defendants who are not aware such a request is not authorized by law, is not available in equity, and represents a violation of their constitutional rights," the filing said.
• The Colorado federal court exercising jurisdiction over Hill "offends due process and would be unreasonable" as Hill has no contacts to Colorado and his nonprofit website doesn't transact business with anyone in Colorado.
• Hill did nothing to make himself subject to the jurisdiction of the Colorado court as Righthaven as the claimed copyright holder is based in Nevada; and when Hill first spotted the photo at issue on the Internet he had no idea it depicted events in Colorado or that it was taken by a photographer for the Denver Post.
"As shown in Righthavens’ own exhibits, the photo shows a non-descript law enforcement officer, 'patting-down' what appears to be an anonymous male in what may be an airport. The frame of the photo is taken up almost entirely by the two anonymous figures. There is no indication in the background, or foreground that this photo corresponds to a location in Colorado," Hill's filing said.
• Since its publication on Nov. 18, the photo has been featured in numerous websites and has effectively "gone viral."
"If one were to type in the phrase 'TSA pat-down photo' into a standard Google search engine query, it returns approximately 290,000 hits. The same terms used in an image search returns 85,100 hits. The subject photo appears four times on the first page alone. None of the pages are from The Denver Post or Righthaven," the filing said.
• Hill first spotted the photo on the deadseriousnews.com website, a parody site that appears to the be source of the infringements alleged in several of Righthaven's lawsuits.
"Righthaven’s own exhibits clearly indicate that it knew this, or should have known this, before it filed its lawsuit in Colorado. To the extent Mr. Hill understood, or was capable of understanding that this article was a parody, and/or social commentary, Mr. Hill believed that the apparently California-based website was the creator of the work in question, and that it may have related to a public airport in San Francisco," Hill's filing said.
• Brian Hill said in his declaration he didn't use the photo from deadseriousnews.com because he wanted a higher-resolution image. "Seeing that the subject photo had gone viral and readily appeared on numerous sites, I accessed an unknown amateur blog site that had another unattributed subject photo with commentary," he said.
• "If Righthaven, seeking to mitigate any accrued damages, contacted me informing me of the issue, I would have removed the photo from my website," Hill added.
• "Mr. Hill also notes that the same photo appeared on Nov. 18 in the online version of the British newspaper The Daily Mail. The photo in question is designated 'Copyright AP.'"
"It is unclear, and not alleged if the photo in question was transiently assigned to The Associated Press, or if Righthaven has any contractual arrangement with The Associated Press, apart from their position as a proxy plaintiff on behalf of Media News Corp., or, if the AP is in fact the rightful owner of the photo in question. Or, more plausibly, the second largest newspaper in Britain is likely guilty of innocent misattribution."
Hill's filing pointed out William Dean Singleton, chairman of the board of directors of The Associated Press, is also chairman and CEO of Denver Post owner MediaNews Group
(Righthaven hasn't yet commented about the lack so far of a lawsuit against www.deadseriousnews.com. The Associated Press has not responded to a query about a Righthaven lawsuit against Toronto Star Newspapers Ltd., Metroland Media Group Ltd. and Torstar Corp. That suit says the photo was posted without authorization on the thespec.com website, a website for the newspaper group's The Hamilton Spectator newspaper in Hamilton, Ontario. A court exhibit in that case shows the photo was credited not to the Denver Post, but to the AP.)
• "There is a 'fundamental substantive policy' that could be addressed by an appropriate dismissal of this action. Specifically, this is a case involving federal statutory rights and out of state parties. Righthaven has not suffered any cognizable Colorado harm whatsoever from the infringement it alleges. If any damages occurred, it occurred even before Righthaven procured the copyright registration. Righthaven does not suffer any harm from lost profits or a lost market for the work, as it does not produce or sell content, but merely acquires rights in it to file lawsuits such as this one," the filing said.
"Dismissal favors fundamental substantive policy. As part of its business model, Righthaven appears to have pursued an unyielding, bullying litigation strategy against primarily small defendants as a proxy for the real parties in interest. It flaunts the basic tenants of due process, as well as the letter and spirit of copyright law, ignoring fair use and other requirements and rights. Righthaven threatens unsupportable damages, for non-existent, protected or even de-minimums (minimal) acts against hundreds of citizens that for the most part have no means of defending themselves," the filing said.
• "Righthaven brings these claims with unclean hands, which mandates dismissal of this action. It is apparent that Righthaven was created by its counsel, Steven Gibson, apparently to purchase copyright infringement lawsuits, and serve as a proxy plaintiff for profit. Righthaven is not the author of the subject photo. There is even reason to believe that Mr. Gibson, upon discovering potential infringements, purchases the copyrights only for a limited time so as to pursue the infringement actions against the allegedly liable parties," the filing said.
• "Neither The Denver Post, nor Righthaven, attempted to mitigate any damages by simply sending a cease and desist letter, nor any other request to discontinue the alleged infringement, prior to initiating this action. Instead, Righthaven has brought this lawsuit (and 249 others) against alleged infringers, further exacerbating the court’s overloaded docket," the filing said.
"Righthaven’s motivation for avoiding the simple act of requesting that Mr. Hill cease and desist is simple, it is using these lawsuits as a source of revenue. Such abuse of legal process should be rejected," the filing said.