Righthaven wanted comments removed from Westword.com to settle Brian Hill copyright case

Earlier this year, Righthaven LLC, acting on behalf of MediaNews Group and the Denver Post, sued Brian Hill, a chronically ill, mildly autistic blogger, for copyright infringement over unauthorized use of a single photograph. After a barrage of bad publicity, Righthaven withdrew the suit, but not before making a settlement offer asking Hill to remove comments about the case from all websites that covered it -- including this one.

A reply to the court supplied by Hill includes a "Release and Settlement Agreement" from Righthaven featuring a slew of demands that shocked and offended the hobby blogger, who oversees USWGO.com from his North Carolina home. Some of the most unusual are contained in this passage:

The Defendants, collectively and individually, covenant, warrant, and represent that: (a) Defendants shall submit to Righthaven, within five (5) days after the Effective Date, a comprehensive list of all Media (identifying to Righthaven with enough specificity so that the location site and/or position is readily identifiable by Righthaven) with which, whereby or wherefrom Defendants and/or Defendants' counsel have ever Disclosed any Content regarding the Case or Righthaven (the "Comments"); (b) Defendants, within fourteen (14) days after the Effective Date, shall use Defendants' best efforts to remove, or have removed, in perpetuity any and all Comments from any and all Media, including, but not limited to, all areas of Facebook, Twitter, Care2.com, Federaljack.com, Scribd, Oneutah.org, Flickr.com, Uswgo.com, Westword.com, Lasvegassun.com and Righthavenvictims.blogspot.com; provided, however, that if Defendants are not empowered or otherwise entitled to remove the Comments that are the subject of this Section 9, then Defendants and/or Defendants' counsel shall formally request in writing to the respective owners or controllers of the respective Media, with a courtesy copy provided to Righthaven as notice per Section 22, that such Comments be removed immediately from the Media, within fourteen (14) days after the Effective Date; (c) Defendants and their counsel shall not make any further commentary about the Case or Righthaven to, or on, any Media, unless Defendants receive prior approval by Righthaven; and (d) Defendants shall post on Uswgo.com for a minimum of sixty (60) days the Press Release.

Did Righthaven want all comments supportive of Hill removed from each report on a third-party website -- even those made by people unrelated to the blogger and his family? Or was it asking for the posts themselves to be taken down if they included quotes from Hill and his attorney, David Kerr, both of whom spoke to Westword on numerous occasions? And do attorneys at Righthaven have a working knowledge of the First Amendment? Hard to tell. Still, the reply lists twenty ways in which Righthaven's settlement offer was suspect from the Hill team's perspective:

1. Righthaven inappropriately sought to enjoin Mr. Hill from exploiting any and all Righthaven intellectual property, apart from the subject image, without identifying or specifying such works... Such overbroad demand being subject to an award of liquidated damages of $10,000 per breach...

2. Righthaven inappropriately sought to bind non-parties to the terms of the settlement, namely Roberta Hill, and Mr. Hill's counsel...

3. Righthaven inappropriately sought to use the settlement agreement to remove content from non-party websites that are known to be critical of its for-profit litigation model...

4. Righthaven inappropriately sought to use the settlement agreement to obtain potentially privileged and confidential information from Mr. Hill's counsel...

5. Righthaven inappropriately sought to condition the release of claims against Mr. Hill only on completion of certain actions by counsel and other non-parties...

6. Righthaven inappropriately sought to condition the release of claims against Mr. Hill based on relinquishing his first amendment rights...

7. Righthaven inappropriately sought to condition the release of claims against Mr. Hill to stifle public criticism...

8. Righthaven inappropriately sought a permanent gag order against Mr. Hill, his mother and his attorneys, not only as to the terms of the settlement, but as to ever publically discussing any aspect of this case, or Righthaven generally... Such onerous demand being subject to an award of liquidated damages of $10,000 per breach...

9. Righthaven inappropriately sought to condition settlement on requirements that counsel for Righthaven remove, or seek to have removed any public comments made about this case or Righthaven, and that counsel for Mr. Hill would be further enjoined from ever publically discussing Righthaven, or this case, except with explicit permission of Righthaven, prejudicing his ability to represent other Defendants accused by Righthaven...

10. Righthaven inappropriately sought to impose onerous liquidated damages of $10,000 per breach of the settlement agreement. Such damages were applicable to Mr. Hill's mother, and could be construed to apply to Mr. Hill's counsel...

11. Righthaven inappropriately sought to fix jurisdiction and venue for any breach of this agreement in Nevada despite being aware that Mr. Hill's medical and financial condition would make it impossible to defend his rights in that jurisdiction...

12. Righthaven inappropriately sought to require attorneys' fee pursuant to any breach of the settlement agreement, even though they were aware that Mr. Hill had no recoverable assets, and that his only source of income was exempted from such relief under federal law...

13. Righthaven inappropriately sought to issue a press release that fabricated specific quotes falsely representing that Mr. Hill, his mother and attorney's had made false statements directly contrary to the facts and prior declarations made to this court. The ultimate result being that, Righthaven sought to leverage and condition Mr. Hill's release with a false admission that he, and his mother, and potentially his counsel had perjured themselves before this Court...

14. Righthaven inappropriately sought to issue a press release solely to embarrass and disparage Mr. Hill, insinuating that his mental condition may have led him to make false statements to the public and the Court...

15. Righthaven inappropriately sought to issue a press release which falsely represented that Mr. Hill's counsel endorsed Righthaven's business practices and that Righthaven had exhibited professional behavior during settlement negotiations...

16. Righthaven inappropriately sought to have Mr. Hill provide a false apology for his actions which he maintains are fair use under the law...

17. Righthaven inappropriately sought to extract a false apology from Roberta Hill's for critical statements regarding Righthaven...

18. Righthaven inappropriately sought to extract a false concession from Mr. Hill's counsel for critical statements made regarding Righthaven's business model...

19. Righthaven inappropriately sought to fabricate quotes from Mr. Hill's counsel that would contradict the facts of Righthavens litigation conduct in an effort to mitigate or cut-off any accrued liability...

20. Righthaven inappropriately sought to fabricate quotes from Mr. Hill's counsel that would falsely admit, and make legal conclusions that Righthaven was within their rights to pursue claims of copyright infringement against Mr. Hill, and that Mr. Hill's actions violated the law. Such false concessions would result in extreme prejudice to Mr. Hill's legal rights and any later appeal efforts, but would be in total derogation of counsel's ethical and professional obligations to his client...

At this writing, spokespersons from MediaNews Group and/or the Denver Post have still not commented on the Hill case or whether their de facto partnership with Righthaven on many other copyright-infringement lawsuits represents a tacit endorsement of the company's tactics.

More from our Media archive: "Reporters Without Borders letter faults Denver Post for Righthaven suit against Brian Hill."


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