By Steve Green (contact)
Wednesday, Oct. 26, 2011 | 6:44 p.m.
Newspaper copyright infringement lawsuit filer Righthaven LLC of Las Vegas was hit Wednesday with an order to pay $119,488 in attorney's fees and costs in its failed lawsuit against former federal prosecutor Thomas DiBiase.
This was by far the largest fee award against Righthaven, but likely will be dwarfed by an upcoming award in Righthaven's failed suit against the Democratic Underground. Before Wednesday the largest fee award against Righthaven was for $34,045 — an amount Righthaven says it's having trouble paying or even posting a bond to cover.
DiBiase has a website covering no-body murder cases, or cases where a murder is suspected but the victim's remains have not been located. He was sued by Righthaven last year over allegations he posted without authorization a story on such a murder case by the Las Vegas Review-Journal.
U.S. District Judge Roger Hunt in Las Vegas dismissed Righthaven's suit against DiBiase this summer because Righthaven lacked standing to sue him under its flawed lawsuit contract with R-J owner Stephens Media LLC.
The DiBiase case was noteworthy because his attorneys at the Electronic Frontier Foundation in San Francisco said DiBiase's nonprofit website performed a public service assisting law enforcement officials in bringing justice to crime victims — and that his post was protected by the fair use concept of copyright law.
Case law created by the Righthaven lawsuits suggests DiBiase’s use of the story would be protected by fair use as it was noncommercial and judges have found there can be no market harm to Righthaven for such uses since there is no market for copyrights Righthaven obtains for lawsuit purposes.
Hunt didn't rule on the fair use claim, but in the DiBiase case he ruled Righthaven had wrongly been claiming it had the right in its lawsuits to seize defendants' website domain names.
That standard lawsuit demand was criticized by defense attorneys who said it was meant to bully defendants into settling, though Righthaven insisted it was a legitimate demand especially against copyright infringers who wouldn't stop infringing or who failed to pay a court judgment to Righthaven.
Righthaven, as its custom, will likely appeal Wednesday's fee award in favor of DiBiase.
"The Copyright Act states that prevailing parties may recover `a reasonable attorney’s fee' along with `full costs.' Mr. DiBiase is a prevailing party based on this court’s order granting his motion to dismiss for lack of subject matter jurisdiction based on Righthaven’s lack of ownership of the copyright and consequent lack of standing,'' Hunt wrote in his ruling Wednesday, adding he also looked at other factors in Righthaven's lawsuit including "frivolousness,'' "motivation'' and the "objective reasonableness'' of Righthaven's suit.
DiBiase's attorneys received every dollar they asked for in their fee request.
"Righthaven’s lawsuit against Mr. DiBiase was a shameless attempt to extract a nuisance value settlement from someone who spends his free time trying to assist prosecutors and investigators by maintaining a one-stop Internet resource for information about `no-body’ murder cases. Mr. DiBiase prevailed in this action because he demonstrated that Righthaven could not — as a matter of law — establish the first element of a valid copyright infringement claim: ownership of a copyright. Righthaven’s case was objectively unreasonable from the outset and motivated by improper purposes throughout," their fee request said.