As Kane writes in his ruling, a statute expressly precludes the award of attorney fees if the case has been voluntarily dismissed, as Righthaven did in this case, sans what's known as a "bad faith exception" -- a sanction for bad-faith conduct during the course of litigation. He then notes that "there is substantial evidence that Righthaven has engaged in a pattern of filing copyright infringement suits against naive bloggers in order to secure settlement agreements, often with a minimal investment of time and effort. These lawsuits act as an effective bargaining chip in the negotiation of settlement agreements, because the cost of settlement is often less than the cost a defendant would incur in defending against Righthaven's suit."
Awarding legal fees "would materially weaken the bargaining position that Righthaven has so successfully relied upon," Kane acknowledges. But "even though there are significant legal questions concerning the viability of Righthaven's cause of action against Mr. Hill, there is no evidence that it brought suit in this district solely for the purpose of extorting settlement."
Hence, Kane concludes that he can't use the bad faith exception even though "Mr. Hill's motion for attorney fees is replete with allegations of Righthaven's misconduct throughout the course of this litigation" -- and "if only a handful of these allegations are true, Righthaven's conduct is deplorable."
David Kerr, Hill's lawyer, isn't complaining. "Usually attorney's fees are only awarded after you go to trial and somebody wins," he says. "And Righthaven never gave us the opportunity to prove our case.
"We didn't take Brian's case to get an award of attorney's fees, so it's not some great disappointment," he goes on. "We took Brian's case because it was the right thing to do -- and now there's no more lawsuit pending against him, and he's free and clear to do what he wants to do with the rest of his life."
Besides, Righthaven's win wasn't exactly accompanied by lots of compliments for its business model, which appears to be on shaky ground thanks partly to Hill's decision to fight.
More from our Media archive: "Reporters Without Borders letter faults Denver Post for Righthaven suit against Brian Hill."
