The view of judicial-system abuse usually pushed by politicians and lobbyists, including some of the shills in our own Texas legislature, is of the barely-hurt-but-greedy auto accident or medical liability plaintiff who expects to back his truck up to the side of his lawyer’s office and start shoveling his money into the bed. It’s the welfare mother who wants to live large on the windfall from a lawsuit, rather than get a job or the grandmother who gets millions for spilled coffee. Tort reformers have made these kinds of stories—whether true or hyperbolic—their bread and butter for years now, and they have led to substantial legal “reforms,” some needed, some not.
But in the internet age, the frivolous litigant has a new face. Righthaven LLC is a Nevada limited liability company that exists for what appears to be the sole purpose of bringing lawsuits for copyright infringement. Righthaven is what the Electronic Frontier Foundation calls a “copyright troll.” Righthaven searches the media for instances of possible copyright infringement—usually unauthorized use of newspaper articles or photographs—and then contracts with the original publisher for an interest in that same article or photograph. It then turns around and files a copyright infringement suit against the alleged unauthorized user and splits the proceeds with the original publisher. Being a professional litigant seems to be Righthaven’s only line of business. (Its sole web presence is www.righthavenlawsuits.com.) Presumably, this allows publishers to chase lawsuits and try to scratch up a little extra cash on the side without actually getting their hands dirty in the often messy world of litigation.
But Righthaven had a recent setback in a Nevada federal district courtroom. There, in the case of Righthaven v. Center for Intercultural Organizing, Hon. James Mahan granted summary judgment to the defendant on the grounds that its use of an article from the Las Vegas Review-Journal—a piece of which was sold to Righthaven by Stephens Media LLC, the publisher—constituted “fair use” within the meaning of the federal copyright law. The gist of the holding was that an assignee that holds a share of copyright purely for litigation purposes has a case that is much more susceptible to defeat by a fair use defense. Unlike Stephens Media, Righthaven isn’t in the business of disseminating information, selling newspapers, or even licensing news articles and photographs to others. (The license it purchased from Stephens Media didn’t allow it to do any of these things.) It’s in the business of filing lawsuits against websites, bloggers, and anyone else against whom it can arguably assert claims. So a use of the article for its original intended purpose—disseminating information—becomes a transformative use within the meaning of the law and a transformative use falls within the fair use doctrine.
Of course, the claims Righthaven pursues are presumably claims that the original copyright holder feels aren’t worth pursuing if it would actually mean expending any of its own time or resources. Litigation costs time and money. It results in an invasion of privacy and a public parading of facts that many would rather have remain private. The perception that plaintiffs hire a lawyer and then just sit back and wait for the money to roll in seems to be part of what has spurred the tort reform movement. And if an individual like the hackneyed greedy personal-injury plaintiff or a corporation like Stephens Media can avoid the awkward and time-consuming aspects, the uncertainties and worries, of a lawsuit, by simply contracting them away, it’s bad news for our legal system. Litigation shouldn’t be painless, but making it painless for its corporate partners is precisely what Righthaven appears to set out to do, while lining its own pocket in the process. One would hope that it’s not only our federal judiciary that is taking notice of this new breed of litigant.
Tip o’ the hat to Courthouse News Service.