Petition Underscores "Sham" AssignmentsEarlier today, Citizens Against Litigation Abuse, Inc. (CALA) and the Lowcountry 9/12 Project filed a petition for original jurisdiction in the State of South Carolina Supreme Court. Attorneys representing CALA, Righthaven victim Dana Eiser and her nonprofit advocacy group filed the petition. The petitioners seek a declaratory judgment and injunction against Righthaven from proceeding with unauthorized practices of law in South Carolina -- aka sham copyright assignment lawsuits.
The petition cites abusive debt collection cases determined in numerous states including, Utah, New York, Michigan, Wisconsin, New Mexico, West Virginia and Iowa, involving identical assignment lawsuits found to be a "sham perpetrated on the court to enable unauthorized practice of law." Such an assignment-lawsuit-kickback scheme was also addressed by the high court of South Carolina just four years ago and met with a similar fate (cited in the petition: Roberts v. LaConey).
Some illustrative portions from the petition:
Righthaven's overreaching chills freedom of speech and expression.See: Petition in full (CALA v. Righthaven LLC) | See: VEGAS INC article, TechDirt article
Were Righthaven solely filing suit against real content pirates instead of innocent people and people who unintentionally commit de minimus infringement, its activities would still violate the law of unauthorized practice, but Righthaven would not post a broader threat to free speech. Such a course of action would require Righthaven to exercise some level of restraint and judgment, something that is apparently impossible within the confines of its offices. A direct result of RIghthaven's sue-first-ask-questions-later strategy has been the severe chilling of legitimate, constitutionally protected speech.
As U.S. District Judge James Mahan noted, "Plaintiff's litigation strategy has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained thereif and does nothing to advance the Copyright Act's purpose of promoting artistic creation."(Page 28)
The idea of a professional responsibility is entirely lacking in the Righthaven enterprise, and understandably so, because it is not a professional company. Instead of being a respectable law firm, Righthaven calls itself an "enforcer." And that is certainly what Rigthhaven is, in the most pejorative sense of the term. Righthaven's complaints are not requests for a court to remediate injustice, they are clubs used by thugs in the service of a protection racket.
Responsible law firms don't initiate suit over the reposting of four out of 34 paragraphs of a newspaper article. Responsible law firms don't sue disabled people with autism and try to leverage them out of their social security benefits. Responsible law firms don't mandate that opposing counsel lie in a press release as a condition of settlement. Responsible law firms don't try to dismiss with prejudice while claiming to be uninterested in the case, then seek to intervene after being dismissed without prejudice.
But Righthaven is neither responsible nor a law firm. It does not comply with the ethical standards of the profession because it doesn't have to. (Page 29)
While the cases cited herein are not crystal clear on this point, it seems extremely likely most if not all of the assignors in those cases were debt collectors collecting real debts of a sum certain that were only due and owing. If the assignment-lawsuit-kickback method is barred as to judgment enforcement and cum-certain debts, it most certainly must reach Righthaven conduct. A debt collector assignee's leverage is almost certainly limited to the true upper limit of the debt. Even an unrepresented, unsophisticated defendant is unlikely to be suckered into paying more than he actually owes on a judgment or a sum-certain debt.
There is far greater need to protect the public from the harm caused by Righthaven. Righthaven isn't using improper means to collect true, legal debts, Righthaven uses improper means to convince targets they have far more exposure than they actually do, tricking them into paying out far more than the claims are worth even if brought by true copyright holders. (Page 31)
The comparison of Righthaven to a "thug bill collector" by the authors of the petition could not be more on point. One must always remember what truly lies beneath Gibson & Company's constitutional law and founding father "clatter" that bubbles up in media stories from time-to-time -- good old-fashioned predatory debt collection. A special thanks to the South Carolina attorney team for pointing to other cases where courts have found similar third party assignments a sham.
Attorneys for petition: Todd Kincannon of The Kincannon Firm, Thad Viers of Coastal Law LLC and Bill Conner of Horger and Connor LLC.