Judge to copyright troll: your "business model" isn't my problem | Hacker News Reader

Judge to copyright troll: your "business model" isn't my problem

arstechnica.com

159 pointsgrellas43 comments

To be clear, it's not that the judge found that the trolls don't have the right to be trolls. The decision seems designed to eliminate the use of the courts themselves as a weapon (as opposed to justice being done). It significantly reduces the amount of money that a defendant must invest to defend himself.

The money quote from the judge:

"Whether or not this case settles is not my primary concern," wrote the judge last week. "Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

I see that as the judge telling the trolls to stop trolling. Without the threat of protracted legal costs the trolls have no teeth.

Maybe, maybe not.

David Kerr, the defense laywer, was going to file numerous motions to dismiss/ change venues. That would have ran up the copyright troll's legal bills. I suspect that the judge would have happily gone along with Kerr's plan, but who knows?

Doesn't really matter in this case anyway. The mere threat of actual litigation scared Righthaven away.

No. The loser may be asked to pay for the legal costs of the winning party. This is not a good strategy for most people, even for Hill (I suspect).

Hill's attorney had two things in mind:

1. If Hill won, it'd have been very bad for RightHaven.

2. If RightHaven backed down, it'd be good for Hill.

3. If RightHaven won and got a large judgement against Hill, the outrage would be huge. But Hill would still be up for the bill.

Actually, if you read the pleadings it is clear that Hill has no assets or income other than a disability pension.

So if Hill won, or Righthaven backed down, great for Hill. But if Righthaven won an obscene judgment plus costs against Hill, he could simply ignore it. Righthaven's only recourse would be to spend more money obtaining a bankruptcy order against him which would:

1. Probably have no practical impact on Hill, a mentally an physically disabled single man with no assets; and 2. Still not result in Righthaven recovering any money.

I'm aware of that. However, he may still be instructed to pay or face jail time. At which point his carer will have to fork out money.

I agree, and I kind of have a problem with it. Regardless of my thoughts about this case and others like it, the judge is supposed to be objective; he sure sounds like he's already biased against the plaintiff.

It doesn't sound like that to me. He sounds like he's against the plaintiff on that issue, for sure, but that doesn't mean he lacked objectivity. Being objective or unbiased means that you aren't influenced by external factors, so your decision is based only on the relevant facts. It doesn't mean you don't ultimately take one side or the other.

The case hasn't been litigated yet. Sure, he's eventually going to take sides... but this is way premature.

Unless I'm badly confused, the particular issue on which he came out against the plaintiff was already brought up.

As I understand it, a judge can make a preliminary decision that a case, or elements of a case, are without merit, before hearing the complete arguments of the plaintiff.

Yes. A judge is making ... judgments ... all through the case. Every time that cliche lawyer jumps up and cries "objection", the judge has to make a decision, and take a side.

Judges are supposed to be intelligent, not automata.

I think at some point we have to say "enough is enough" and stop letting people game the system as a business model. The legal system is there for people to seek actual reparation for actual damages incurred. I think it should be taken on a case-by-case basis but clearly Righthaven haven't even gone through with due process by first sending cease-and-desist letters as noted by the judge. They're just passing Go and attempting to collect $200.

That's not what due process means. There's no law that says they have to give the defendant notice and opportunity to stop infringing before filing suit.

If the system needs reform, then reform the system. But a judge shouldn't be prematurely taking sides against a litigant who's playing by the rules as they currently exist.

There's no law that says they have to give the defendant notice and opportunity to stop infringing before filing suit.

Not technically, but as the article says, if the plaintiff takes no steps to mitigate the damages he's supposedly suffering, but goes straight for the defendant's wallet without asking for so much as a preliminary injunction, it's reasonable to suspect his motives.

And that may affect what he eventually receives in damages. But the judge taking sides against him based on doing something that he's within his rights to do is inappropriate.

I guess then that delineates the difference between the letter of the law and the spirit of the law and what you value more.

This one actually came to a decision and the judge ruled against Righthaven, at least partly because of the odious nature of the copyright trolling business.

Am I the only one who's more shocked about the content of the article that was allegedly infringing?

Apparently a man got arrested without bail for ejaculating while getting his genital piercing patted down ... for "sexual assault" of a federal officer. Way to go TSA

I'm surprised there aren't more comments on this. The fact that he was arrested for it that shocked me, as if it's his completely his fault his gun went off.

I've researched it, and it seems like it was a satirical news website:

http://www.snopes.com/politics/satire/patdown.asp

http://www.deadseriousnews.com/?p=603

It's interesting to note that one of the defendant's decent laywer ended up scaring off the copyright troll. Apparently, the IP lawyer involved was going to argue RightHaven into the ground, by raising many motions, running up the copyright troll's legal bills (wrong venue, failure to make a claim, etc.) It's the penultimate case of turning the tables!

The judge said some nice things about abuse of the courts, but look at the lawyer for the real victory.

This is running rampant in the adult community right now. Studios suing thousands of people for uploading to torrents. It's the new revenue model when your current isn't generating. Subpoena 1000's of IP's and send threatening letters demanding payment.

Sad.

This is the way the case ends: not with a bang but a whimper

solid TS Eliot reference

This is awful.

They're basically playing chicken with legal costs. Usually targets veer first. This time the trolls did. If neither veers, someone (maybe everyone) wastes a lots of money.

Props to Judge John Kane. Take that, trolls!

It always warms my heart when I see people in the legal system get it right. I think slowly more and more people are entering that profession with a modicum of understanding of modern technology and how companies have been preying on the ignorance of the previous generation to bully their way to profitability.

Note that the ignorance of the previous generation is not said as a slight. I'm sure my children's generation will be rolling their eyes at the things I say and do 20-30 years from now.

It might warm your heart, but this is not a success story. It shouldn't take a judge noticing malicious intent to stop this kind of behavior. In fact, intent, malicious or otherwise, shouldn't matter. The system should be fixed so that filing any frivolous suit is an expected loss. Noticing and dealing with the worst offenders who are filling loads of frivolous claims is just a kludge fix.

The system should be fixed so that filing any frivolous suit is an expected loss.

Maybe, but that's off-topic. I don't think anybody is claiming that this is "frivolous". It's a real case, based on alleged violation of real laws. There's a real question at stake, whether the defendant's usage of the IP was Fair Use.

You're right, and I feel this is a step in the right direction.

Many jurisdictions have torts for abuse of process or malicious prosecution. The trick is proving it.

(IANAL, this isn't legal advice).

Just wondering, why did you bother adding the IANAL. You just don't want a fellow HNer to take the advice, run with it and possibly end up in trouble, or are you worried that someone will claim you as their lawyer, trace your IP and somehow end up messing with you?

Lawyers enjoy "advocate's immunity", while I as a mere ex-law student do not. If someone relies on my advice I may be on the hook in the case that it is wrong. My only defence would be "but your honour, I pointed out that I am not a lawyer".

It's tedious, but if there's one and only one thing that law taught me, it's a habit of professional paranoia.

Thanks for explaining. Interestingly do you know of any cases where someone had gotten in trouble giving such an advice over the internet?

Also, you mentioned that as an ex-law student you must be careful? Is there any special status associated with ever studying law that makes you more susceptible to such charges rather than say, if you had studied history or math?

> if there's one and only one thing that law taught me, it's a habit of professional paranoia.

You might make a good security researcher then ;-)

I'm not aware of any such cases, and no, law students are not afforded special status. However most freshers / 1Ls are repeatedly warned to keep. their mouths. shut. by the lecturers. In most professions, sophomorism is annoying bordering on cute; in law it's a potential fast track to ruination.

In short: To give unqualified advice, you must first be qualified.

I wonder though how skewed our view of the legal system is? We rarely hear success stories like there where rulings are made in what is seen in favour of the greater good. Is that the result of either selective news reporting or consistent bad judgement alone or a mixture of both?

I agree, we don't always hear the good results.

However, one thing that is rarely reported, and I'd like to know, is how much the defendants in this case had to spend on lawyers to get these trolls to go away. If they had to spend a lot of money, and didn't recover it, that's a loss. Plus, how much time loss and personal stress/unhappiness did this lawsuit cost them?

If a court system drags you through the dirt and bleeds you dry to get a ruling that most people would agree is common sense, well, that's better than a bad ruling, but it's still a kind of fail.

I think there's pretty good coverage of the egregious attempts to abuse copyright and patent law and due process. I suspect that rulings in favor of limiting IP rights are truly rare, because most plaintiffs are smart enough to drop the case or settle rather than risk setting a precedent that would prevent them from being able to file a similar suit.

(Case in point: The Sony v Hotz settlement)

Your view of everything is skewed. As a rule, almost everything works "well". Crime is rare, legal disputes are usually settled sensibly, politicians work hard etc.

News is about the exceptions to the rule. "Everything Normal" does not make an interesting headline.

Yes, averaged across the entire population thinks work reasonably well, but among critical subsets of the population (like the technologically savvy) the picture isn't so rosy. For example, does almost everything work well in the realm of P2P mass lawsuits and college student settlement shakedowns? Are there millions of college students successfully defending themselves against shakedown letters not getting any news attention?

I have no actual basis to back up my statement that more technologically-savvy people are entering the legal profession as judges, but it will happen inevitably as each generation gives way to the next.

Ah, but by the time the tech-savvy law students become judges, they may not be tech-savvy anymore.

This is only from my own experience at law school. There were relatively few truly tech-savvy folks out there. Almost everyone I knew still used Microsoft Word to type their lecture notes and outlines. (MS Word is terrible for this purpose - its internal formatting gets weird after a certain amount of bullet points.) I used special software for my lecture notes from a startup, and other students viewed me as "weird". I was also the first law student to use Dropbox to back up my work - seriously. (There were some other law students who were programmers before, but they are a different class of lawyers.)

I'm not entirely sure that a legion of new lawyers who know how to use MS Word, computers and the internet are "technologically-savvy". More tech-savvy than old lawyers? absolutely. Compared to the rest of society? Eh.

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