[Infowarrior] - Righthaven rocked, owes $34, 000 after "fair use" loss

[Richard Forno]

Righthaven rocked, owes $34,000 after "fair use" loss

By Nate Anderson | Published about 10 hours ago

http://arstechnica.com/tech-policy/news/2011/08/righthaven-rocked-owes-34000-after-fair-use-loss.ars

The wheels appear to be coming off the Righthaven trainwreck-in-progress. The litigation outfit, which generally sues small-time bloggers, forum operators, and the occasional Ars Technica writer, has just been slapped with a $34,000 bill for legal fees.

Righthaven v. Hoehn, filed in Nevada federal court, has been an utterly shambolic piece of litigation. Righthaven sued one Wayne Hoehn, a longtime forum poster on the site Madjack Sports. Buried in Home>>Forums>>Other Stuff>>Politics and Religion, Hoehn made a post under the username "Dogs That Bark" in which he pasted in two op-ed pieces. One came from the Las Vegas Review-Journal, which helped set up the Righthaven operation. Righthaven sued.

This was the salvation of the news business? Targeting forum posters in political subforums of sports handicapping sites? But at least it looked like Righthaven had a point; copying had certainly occurred. Had infringement?

Before it was all over, the judge decided that Righthaven had no standing even to bring the case, since only a copyright holder can file an infringement suit (Righthaven's contract only gave it a bare right to sue… which is no right at all). Then the irritated judge decided that Hoehn's cut-and-paste job was fair use, helping establish a precedent that could undercut the entire Righthaven approach.

Then the defense lawyers wanted to be paid. They asked for $34,000 in fees, arguing that they had won the case. To avoid paying the opposing lawyers, Righthaven recently argued that fees could not be awarded; since Righthaven had no standing to sue in the first place, it argued, the court had no jurisdiction over the case at all, not even to assign legal fees.

Defense attorney Marc J. Randazza was furious. "Righthaven deserves some credit for taking this position, as it requires an amazing amount of chutzpah," he wrote to the judge. "Righthaven seeks a ruling holding that, as long as a plaintiff’s case is completely frivolous, then the court is deprived of the right to make the frivolously sued defendant whole, whereas a partially frivolous case might give rise to fee liability. Righthaven’s view, aside from being bizarre, does not even comport with the law surrounding prudential standing."

The judge agreed. In a terse order today, he decided that Hoehn had won the case (as the "prevailing party") and "the attorney’s fees and costs sought on his behalf are reasonable." Righthaven has until September 14 to cut a check for $34,045.50.

This is the second case in weeks in which Righthaven has to pay the Randazza Legal Group. The first time, Righthaven sent its $3,815 check to the wrong address.

By e-mail, Randazza commented, "We find it unfortunate that Righthaven didn't just settle this matter when they could have. Murum aries attigit."

Didn't catch that last bit? It's Latin for "The [battering] ram touches the wall," and it goes back to Julius Caesar. As Caesar told a group of unfortunates the Roman legions were about to overrun, he would "spare the state, if they should surrender themselves before the battering-ram should touch the wall." But once the assault had begun, there would be no mercy.