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Controversial copyright-enforcement company Righthaven–which has worked with newspapers to file more than 250 copyright lawsuits against small websites–has not been faring well in court lately, to say the least. The company is under fire from multiple defendants, who claim that the company’s acquisition of newspaper copyrights isn’t valid. Now Righthaven has hired a well-known copyright lawyer from a top New York law firm. It’s a move that suggests Righthaven is really feeling the heat, as Nevada judges grow skeptical of its lawsuits.
The attorney in question is Kirkland & Ellis partner Dale Cendali, who had a few big copyright successes recently, including in The Associated Press‘ lawsuit against artist Shepard Fairey. In that case, Fairey argued that his “Obama Hope” poster was a fair use of an AP photo; but Cendali and her legal team ultimately achieved a settlement with Fairey in which he will make royalty payments to the AP. (No determination was ultimately made on the fair use issue.) In another high-profile case, Cendali represented Harry Potter author J.K. Rowling; Cendali was able to shut down the publication of an unauthorized encyclopedia about the Harry Potter universe, even though the creator of the encyclopedia was represented pro bono by lawyers from Stanford University’s Fair Use Project.
Cendali didn’t respond today to an email requesting comment on her decision to get on board with Righthaven and Stephens Media. Cendali’s billing rates are not public information, but generally speaking, Kirkland & Ellis lawyers are not inexpensive. Kirkland was one of the first firms where some New York partners broke the $1,000-per-hour billing ceiling a few years back.
The hiring of Cendali suggests that Stephens Media may be afraid of getting hit with a ruling for attorneys’ fees and actually losing money out of the Righthaven litigation expedition. In any case, it’s hard to imagine how hiring such a high-priced lawyer could be a moneymaker for Righthaven. Eric Goldman, a law professor and blogger who has been critical of Righthaven, told the Las Vegas Sun: “I wouldn’t be a bit surprised if Ms. Cendali’s fees in this case end up being many multiples of the maximum damages that Righthaven could possibly hope to get from Pahrump Life. That’s hardly a path to riches for Righthaven,” Goldman said.
Cendali’s first appearance is in a case against the Pahrump Life blog, which appears to have gone private since it was sued by Righthaven back in September. Court records indicate that the proprietor of Pahrump Life, Michael Scaccia, is defending his case pro se (without a lawyer). In a court filing, Scaccia describes himself as a retiree who lives in Pahrump, Nev., whose “community is very important to him.” The blog, which was non-commercial, was created for the purpose of “educat[ing] people about problems associated with privately run prisons.”
District Judge James Mahan, who is overseeing Righthaven’s lawsuit against Pahrump Life, has ordered Righthaven to explain why its case shouldn’t be dismissed for lack of standing, now that its contract with Stephens Media has been exposed. In his most recent order, Mahan writes that the agreement “appears to support defendant Scaccia’s claim that Righthaven does not have standing to sue for copyright infringement.” In the hearing scheduled for next Thursday, it will presumably fall on Cendali to justify Righthaven’s tactics to the judge.