Stephens Media's Copyright Enforcer Righthaven Struggles

Righthaven LLC of Las Vegas, the company that was authorized to file copyright infringement lawsuits for Arkansas-owned Stephens Media of Las Vegas and Arkansas Democrat-Gazette owner Wehco Media, has encountered rough sledding for its business plan.

Stephens Media CEO Mike Ferguson told Outtakes last week that his company is no longer involved with Righthaven, despite being an early investor and its first client.

And Wehco ended its agreement without permitting Righthaven to file any lawsuits on its behalf, Wehco Newspapers President Paul Smith said.

Beginning in 2010, Righthaven made itself the darling of media companies frustrated with casual lifting of material that has been produced at no small expense.

But Righthaven became the demon of bloggers and other website operators who have been sued for what, in some cases, appeared to be legal use or simple ignorance of copyright law.

Early targets tended to settle rather than take their chances in court. But as the number of copyright infringement suits grew into the hundreds, defendants began taking on Righthaven and its founder, attorney Steve Gibson. And the courts have not been kind.

No judge has ruled in Righthaven's favor, according to Las Vegas attorney Marc Randazza, who is defending against Righthaven in about a dozen cases.

Gibson did not return calls for comment.

Randazza said most of the people Righthaven sued were engaged in "fair use" of published articles or photographs and gave proper credit when posting them on personal blogs or public forums.

Fair use is a recognized legal doctrine that allows the publication of someone else's copyrighted material under certain circumstances - generally when only excerpts are used and properly credited.

"I think what Righthaven's doing is abusive and - at least two courts have agreed so far - is contrary to the law," Randazza said. "What's abusive is they're going after people who didn't do anything wrong."

What's more, two federal judges have ruled that Righthaven didn't have the right to sue anyone, fair use or not, because its newspaper clients only temporarily transferred ownership.

In August, U.S. District Judge Philip Pro of Nevada determined that Randazza's client, Kentucky resident Wayne Hoehn, made fair use of an article from Stephens' Las Vegas Review-Journal when he shared it with an online forum last November.

Pro also ruled that "Righthaven has no meaningful rights other than the bare right to sue, something that is not transferable ... ."

Pro ordered Righthaven to pay $34,045 by Sept. 14 to cover Hoehn's attorney's fees.

Righthaven asked for time to appeal the ruling, and Pro granted the motion last week. But he also warned that Righthaven "does not enjoy a reasonable probability of success on the merits of its appeal," so he required the company to post a bond securing the judgment.

Hoehn's attorneys had hoped Pro would order the U.S. Marshals Service "to execute Hoehn's judgment through seizure of Righthaven's bank accounts, real and personal property, and intangible property rights for levy, lien, auction or other treatment appropriate for satisfaction of Hoehn's judgment."

But an attorney representing Righthaven argued the company wouldn't be able to pay the $34,000 without liquidating its assets, including "intellectual property rights to all copyrights assigned from Stephens Media" and "copyright infringement search engine software."

"If these invaluable intellectual property and proprietary assets were seized and liquidated during the appeals process, Righthaven would be irreparably harmed to such a degree that it would jeopardize its ability to continue to do business," wrote attorney Shawn Mangano of Las Vegas.

Also last week, U.S. District Judge John Kane of Colorado ruled that Righthaven had no right to sue over unauthorized use of Denver Post articles because it did not fully own the copyrights assigned by owner MediaNews Group. Kane stayed about 60 other Righthaven cases.

Even if Righthaven proves it exclusively owns the Stephens Media and MediaNews Group copyrights, the company still has not proven it sued people who transgressed, Randazza said.

"It is an ignoble and illegal enterprise, and everyone involved in it should be ashamed of themselves," Randazza said. "I don't think it had anything to do with protecting rights of authors or creators of anything. Stupid plus greed equals Righthaven."