Sunday, May 08, 2011

Righthaven tries to use novel logic to avoid attorneys fees in cases that it is staring to lose, "dismissal with prejudice", and then a gag order

We’re seeing a new wrinkle in the Righthaven cases.  The plaintiff dismissed the case against Brian Hill “with prejudice”, which seems to require Hill to remove any posts about Righthaven and never write about them again (a demand that would be fatal to the whole concept of blogger journalism; I can imagine the effect on me if I had to do that).  The “Righthaven Victims” blog has the latest story (website url) here.  (The story links to the PDF of Righthaven's response.)

All of this happened as a response for a demand that Brian Hill be reimbursed for his legal fees.  This is likely to occur again in other cases where Righthaven starts to “lose”, particularly if its cases (as in Nevada) all fail because of lack of “standing” or champerty – but then it would seem that there could be more litigation following up on the frivolous nature of the litigation. Sometimes copyright law does punish frivolous claims, but it’s a tricky topic, as an incident in New York State, reported in the “Likelihood of Confusion” blog reported (website url) here
In Texas, GOP governor Rick Perry has been advancing a proposal to make losers pay for most frivolous lawsuits in our tort system, story (website) here

Righthaven's idea of trying to get a "gag order" in cases it is about to lose suggests that this whole episode of copyright trolling is more than just a "business model" to enforce copyright law; it wants to become a way to gag low-cost competition!  You'd have to be careful about this possibility in promoting tort reform (which Gov. Perry commendably wants to do).

May 23, 2011:  Update: Read on Scribd: Reply by Brian D. Hill to Righthaven's "gag order" demands. It makes for interesting reading.  Link.

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