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Saturday, September 11, 2010

Righthaven vs. Charles Johnson (RadGeek)

At the urging of one Anonymous UK commenter, I've been investigating "legal extortion". My post on BMI/ASCAP/SESAC has been pretty popular, according to Google Analytics. I noticed another legal extortion scam by Righthaven, Stevens Media, and the Las Vegas Review Journal.

I'm working on a more detailed Righthaven post. While researching this post, I stumbled across this article. Charles Johnson (RadGeek) is being sued by Righthaven for copyright infringement! Charles Johnson hasn't mentioned this on his blog yet, so I assume he doesn't know. That reporter (Steve Green) claims to have attempted to contact Charles Johnson.

I guess I'm "breaking" this story, at least in the "left libertarian" blogging circle.

RadGeek is being sued over this post. Most of the text seems to be copied from {I'm not linking to those scum.}. RadGeek didn't cite the source, which qualifies as "slightly immoral but not illegal". He seemed to be illustrating the mainstream media pro-State troll bias.

He's being sued over posting the article on the aggregator site, and not on his original blog.

This should be interesting. A group of well-connected lawyers are abusing the State legal system to extort from a well-informed anarchist.

I briefly considered copying one of their articles, just to get the free publicity associated with a frivolous lawsuit and a successful pro se defense. However, I have better things to do. I'll see how Charles Johnson handles it. Fighting stupid civil lawsuits falls under "Fighting bad guys bad guys on their turf." Besides, Charles Johnson lives in Las Vegas, making a pro se defense feasible.

Immediately after suing, Righthaven is offering settlements of around $5k-$7k. They are banking on the fact that the cost of hiring a lawyer is greater than the cost of settling. It's an excellent example of legal extortion.

Due to lobbying by the media cartel, copyright law is ridiculously unfairly biased in favor of copyright owners.

What are RadGeek's options?

In order of increasing desirability, RadGeek's options are:

  1. Hire a State-licensed lawyer.
  2. Bend over and settle.
  3. Ignore the lawsuit, let them get a default judgement, and then let them try and collect it.
  4. Defend yourself pro se.
Hiring a lawyer seems like the worst option. As the Anonymous UK commenter likes to point out, the lawyer will take your money and you'll probably lose anyway.

RadGeek could bend over and settle. That also seems cowardly.

If you're a hardcore anarchist, "Ignore it and make them try and collect." seems attractive. Even via default judgement, the judge may not award much. I could not do this, because I have State paper investments that could be seized. I don't know if RadGeek has any assets in the State system that could be seized.

For this reason, a secure agorist alternate banking system is needed. Then, if State thugs attempt to extort from you, you're safe because your savings are safely hidden.

Another option, if you're almost broke, is "Ignore it, default, and then declare bankruptcy."

RadGeek lives in Las Vegas. That makes a pro se defense feasible. Most of Righthaven's victims are not in Nevada. Nevada's judges have erred, ruling that Nevada is the proper venue for these lawsuits.

Righthaven is banking on the fact that the lawsuit is a prohibitive cost for out-of-state defendants. Personally, I'd take a Las Vegas vacation and pursue a pro se defense. I don't have anything that could be considered infringing. I never copy more than a tiny excerpt.

I guess I now must have a policy of "*NEVER* cite a mainstream media source". You never know when one will adopt Righthaven thuggish tactics. This is risky for any website owner. You're also liable for reader comments, unless you register with the Copyright Office for DMCA safe harbor.

Assuming that RadGeek decides to pursue a pro se defense, what arguments should he make? In decreasing order of importance, the arguments he should make are:
  • jury nullification (You can make a "jury nullification" argument in civil trials as well as criminal. It's the discretion of the judge, whether to allow it or not.)
  • fair use
  • barratry, according to common law and not an explicit Federal law (A judge may not allow this argument.)
  • a newspaper article does not meet the legal definition of "literary work"
  • the plaintiffs are violating the Federal Rules of Civil Procedure, specifically rule 11b
  • violations of rule 11b, for filing multiple lawsuits without making a reasonable settlement offer first
  • violations of rule 11b, for demanding the victim's domain name, even though copyright law and precedent don't support that
  • violations of rule 11b, for demanding maximum statutory damages; there's no way a reasonable judge or jury would award that much
  • even if copyright infringement occurred, plaintiffs should only get the statutory minimum
  • even if copyright infringement occurred, plaintiffs should not be reimbursed for legal expenses
Anyway, this should be interesting. I'm surprised that nobody else noticed yet that RadGeek is being sued for copyright infringement.


Scott said...

Looking at that post, he puts the excerpt in quotes and identifies it as an excerpt, so it's not plagiarism.

He then goes line by line debunking it, so this is CLEARLY journalistic fair use and not a copyright violation, and any sane court (if they exist) will find that to be true.

After he has spent 20 million defending himself against this SLAP suit.

BroadSnark said...

There is a word limit on fair use and it's beyond that limit. So he might have a problem.

Default judgments can be re-recorded for many years. In Florida it was 20. That means he would have to worry about wage garnishments or liens on his property for a very long time.

FSK said...

Actually, there's no exact legal definition of fair use. Lawyers made sure that the law was vague, to encourage frivolous lawsuits.

Fair use is an "affirmative defense". The burden of proof is on the victim, to prove that the use was fair. You still have to spend time and/or money defending yourself, which is the whole point of filing a frivolous lawsuit.

In this specific example, actual damages are negligible. The plaintiffs have the legal right to sue, but that doesn't make it acceptable in cases where actual damages are negligible.

Anonymous said...

The legal profession should be viewed as a criminal racket.

They pad out letters full of demands and threats that will never reach a court. At the very least the threats and over-the-top demands will have to be read by an opposing lawyer, who will charge the victim according to how much time he has to spend reading the threat letter.

So at the very least another lawyer will make money out of the long list of threats and demands.

If enough lawyers do this, all lawyers benefit by bogus lawsuit threats.

The legal system profits by being slow and inefficient.

In the UK, in one libel case a Member of Parliament said it took 2 years and 200, 000 UK pounds just for lawyers to work out the meaning of a few works!

Quite frankly the legal profession will grow until the number of its victims becomes limiting.

The legal profession is only "regulated" by the legal profession. Reform is as such impossible.

Scott said...

"There is a word limit on fair use and it's beyond that limit. "

If you mean in the US, that's an urban myth, US copyright law has no specific word limit, it instead mentions that "amount and substantiality" used relative to the whole.

Nor does case law have a limit. Courts have held that reviewers and critics can cite substantially large amounts of the original, but not the whole original. See the ruling in the famous Folsom v. Marsh case for example.

FSK said...

The AP used to have a "4 lines is fair use" policy. However, that isn't an explicit law. Many people confuse the AP policy with what the law actually says.

There's no exact legal standard of "fair use". A newspaper article is not a "literary work" in the same sense that a novel is a "literary work".

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