One Nevada attorney-turned-serial copyright litigant seems to have created a new legal niche — at the expense of bloggers and website owners nationwide.
Steve Gibson is an Illinois- and Nevada-licensed attorney living in Las Vegas, where he helms Gibson Lowry Burris LLP, a law firm that focuses on, among other things, copyright law. Around the beginning of the year, Gibson formed Righthaven, LLC, a company with the purpose of buying and registering copyrights of newspaper articles which have been lifted at least in part by bloggers and website operators, and then suing whoever he can find who has copied them.
Since the company’s formation, Righthaven has filed more than 80 copyright infringement lawsuits, sometimes several in a day, and all in the District Court for Nevada, against bloggers and website operators throughout the country.
Upon information and belief, Righthaven has filed all these suits without any notice to the alleged infringers. Gibson himself poo-pooed any such notice, telling the Boston Herald: “It’s a well-known fact that mere ‘take down’ notices (sent to people) are ineffective.” Alleged infringers don’t know what hit them until they are served with a summons.
The secret to how this type of litigation can churn a profit is written into the U.S. Copyright Act itself. If a court finds that someone’s copyright has been infringed, the Act allows the copyright owner to be awarded its choice of one of two remedies. The first remedy is the copyright owner’s actual damages, which vary depending on the case and include things like lost profits, caused either directly or indirectly, by the infringement. The second option, and the one chosen by Righthaven, is statutory damages. For statutory damages, generally, the Court will choose whatever amount – between $750 and $30,000 – that it deems just – for each infringement. However, if the Court finds the infringement was committed “willfully,” it may to increase that amount to no higher than $150,000. If the Court finds the infringer was completely unaware he or she committed an infringement, it can lower the amount to no less than $200.
Because these cases can be so costly for Defendants – not only in damages, but also in the legal fees required to defend them – Defendants often settle as quickly as possible, thereby feeding the business of the serial litigant. Some Defendants to the Righthaven cases have filed motions to dismiss, arguing things like lack of personal jurisdiction and standing. Time will tell, however, how the Courts treat these motions – and the Plaintiff.
Serial litigation is not new. For instance, since 1992, when the Americans with Disabilities Act (ADA) went into effect, several hundreds of lawsuits have been filed by a small handful of plaintiffs against owners of hotels and other public establishments. Many such suits are quickly settled, thus creating cash-cows for the litigants. The suits are despised by business owners and not necessarily admired by the courts. For instance, one court complained that serial ADA plaintiffs serve as “professional pawns in an ongoing scheme to bilk attorney’s fees.” Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1285 (M.D. Fla. 2004). Another court declared one ADA plaintiff a “vexatious litigant” and entered an order requiring him to notify potential defendants before filing further lawsuits. Molski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860 (C.D. Cal. 2004).
Like it or not, unless Congress makes changes to the ADA, the ADA serial plaintiffs are here to stay. And, for copyright serial plaintiffs, if Righthaven’s recent practices catch on as a trend, the same may be very well true.