Update: Copyright Trolling Becomes Increasingly Financially Hazardous

A Nevada federal court recently found Righthaven LLC responsible for $34,000 in attorneys’ fees.  This onerous judgment couldn’t have fallen on a more deserving group – Righthaven is a copyright troll notorious for suing bloggers and forum posters who have excerpted from or copied articles from other sites to share with their friends or the general public. 

Washington Legal Foundation has sounded out against trolls many times in the past (see e.g. this criticism of patent trolls: Patent Troll Forces Online Music Sellers, Buys to Pay a Toll), including an August 5 WLF Legal Opinion Letter, , Selling Legal Standing? Righthaven LLC And The Judiciary’s Response To Copyright Trolling, in which this description of Righthaven’s unsavory practices can be found: 

In bringing these suits, Righthaven exploits a loophole in the Digital Millennium Copyright Act (DMCA), which states that for user-generated sites to have a “safe harbor” they must fill out a form and pay $100 to register a DMCA “takedown agent” with the U.S. Copyright Office. Righthaven targets those websites whose proprietors have not done that.  The first notice accused infringers receive is a complaint threatening damages of up to $150,000 and confiscation of their website’s domain name. The violations that trigger this are often trivial, such as posts or comments generated by site visitors. Many of Righthaven’s targets are owners of small, low-trafficked blogs who do not possess the financial resources to challenge Righthaven in court. This “shoot first ask questions later” approach routinely compels defendants to quickly settle. Since 2010, Righthaven has filed over 300 suits, and although none have yet succeeded, about 100 have ended in settlement.”

But the worm has turned.  In Righthaven v. Hoehn Judge Philip M. Pro ruled that Righthaven had no standing to bring the case and that even if they did, Hoehn’s use of the text in question constituted fair use.  Then, only days ago, the Judge ruled that Righthaven should pay $34,000 for Hoehn’s attorneys’ fees. 

Befitting its character, Righthaven audaciously tried to wriggle its way out of the payment by declaring that since it did not have standing in the case, the court did not have jurisdiction to compel Righthaven to pay the fees.  Judge Pro disagreed and ordered that the fees be paid by September 14.

For more on this topic, see Ars Technica, TechDirt, and VegasInc.

Court Rules That Subclasses in Class Actions Require Their Own Lawyers

Guest Commentary

Andrew J. Trask, McGuire Woods LLP; author, Class Action Countermeasures blog

Given the stakes of class actions, which transform small-dollar claims into bet-the-company litigation, settlements are hardly unusual.  And given the minuscule recoveries most class members receive compared to their lawyers’ multi-million paydays, neither are objections to those settlements.  What is unusual is for a court to reject a settlement because of these objections.  And what’s even more unusual is for the court to put a small doctrinal booby trap into its rejection.  But last week, the U.S. Court of Appeals for the Second Circuit did just that. 

The class action in question, In re Literary Works in Electronic Databases Copyright Litigation, involved a copyright challenge.  The plaintiffs were freelance authors; the defendants were large publishers with electronic databases.  The plaintiffs accused the defendants of “publishing” their articles in various electronic databases (like LEXIS/NEXIS) without their permission and without paying them.  Back in 2001, the Supreme Court endorsed their theory in a parallel case, N.Y. Times Co. v. Tasini.   Continue reading “Court Rules That Subclasses in Class Actions Require Their Own Lawyers”