IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-00211-JLK

RIGHTHAVEN LLC, a Nevada Limited Liability Company

Plaintiff,

v.

BRIAN D. HILL, an individual,

Defendant.
______________________________________________________________________________

BRIAN D. HILL’S REPLY

______________________________________________________________________________

Rather than answer Defendant Brian Hill’s (Mr. Hill”) motion to dismiss this case,

Plaintiff Righthaven, LLC (“Righthaven”) instead voluntarily dismissed its claims against him

(Docket No. 17 and 21). Subsequently, this Court clarified that it retained jurisdiction to hear

Mr. Hill’s outstanding request for Attorney’s Fees and ordered briefing on the matter, as well as

oral arguments (Docket No. 20). On May 5, 2011, Righthaven filed it’s response to Mr. Hill’s

Motion for Attorneys Fees (Docket No. 22-25). Mr. Hill, by and though counsel

SANTANGELO LAW OFFICES, P.C., hereby submits this reply to Righthaven’s response to

Defendant’s Motion for Attorneys Fees. Specifically, Mr. Hill seeks an award of attorneys fees

pursuant to Section §505 of the Copyright Act as well as the Courts inherent powers. Such

powers include inherent federal and state statutory authority under 28 U.S.C. §1927, and C.R.S.

§13-17-102 respectively, as well as the Court’s ability to impose appropriate sanctions.

POINTS AND AUTHORITY

The courts have a duty to protect the public from inappropriate uses of judicial

procedures. Hutchinson v. Hahn, 2007 U.S. Dist. LEXIS 65272 *27 (N.D. Okla. 2007). As such,

the imposition of “attorney fees “must be available in appropriate circumstances notwithstanding

1
a private party’s effort to cut its losses and run out of court, using Rule 41 as an emergency exit.”

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 390 (1990) (citing Danik, Inc. v. Hartmarx

Corp., 875 F.2d 890, 895 (D.C. 1989)). As part of their for-profit litigation model, Plaintiff

Righthaven uses the Courts as a mechanism to file retail-scale infringement actions, threatening

hundreds of overwhelmed and ill-equipped Defendants, such as Mr. Hill, with lengthy and

expensive litigation. Then, when faced with vigorous and capable opposition, seeks to avoid the

cost of the litigation that itself provoked by voluntarily dismissing the case. Not surprisingly, Mr.

Hill’s dismissal occurred just as Righthaven faced an “unprofitable” reply that could have

resulted in undesired monetary cost to Righthaven. As such, Righthaven’s profit-driven litigation

strategy is clear, “when the going gets tough, the tough dismiss with prejudice.”

Unfortunately, the accused Mr. Hill, and indeed, other Defendants were not so fortunate

as to be provided the opportunity to decide which lawsuit they wished to litigate and avoid those

in which the accused stand up for their rights. Righthaven now wishes to portray themselves as a

victim of an overly zealous Defendant. In fact, Mr. Hill simply refused to accept Righthaven’s

onerous, unreasonable and inappropriate demands under the threat of continued litigation. While

Mr. Hill will show through competent evidence that he did, in fact, engage in preliminary

settlement negotiations in good faith, Righthaven would only accept terms that were wholly

inappropriate in relation to the alleged harm incurred and were solely offered to harass, vex, and

embarrass Mr. Hill, his counsel, and to preserve Righthaven’s business model as well as mitigate

other litigation actions. Righthaven conducted this litigation unreasonably; Mr. Hill had to

respond. Mr. Hill herein alleges and shows with competent evidence that Righthaven has

committed numerous acts that justify relief. Including, for example:

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 1. Dismissing problematic cases to avoid costs and potential counterclaims.

2. Presenting a charade of dismissal to cut off liability for attorneys’ fees.

3. Improperly filing suit in a forum where personal jurisdiction and venue do not
exist as part of a for-profit business model.

4. Seeking relief not supported by law.

5. Seeking windfall profits as a proxy plaintiff for de minimis acts.

6. Providing false or misleading statements under oath to mitigate accrued liability

for its actions.

7. Engaging in unreasonable litigation tactics to coerce settlement from Mr. Hill.

8. Making unsupportable threats to coerce settlement from Mr. Hill.

9. Gaming of settlement negotiations to coerce settlement from Mr. Hill.

10. Falsely telling Mr. Hill that his health was not a factor and would not be
considered in settlement.

11. Demanding unreasonable, onerous and unsupportable settlement demands in bad

faith.

12. Continuing the suit even after is was known that Mr. Hill was mentally disabled,
chronically ill and destitute.

13. Prosecuting this case under questionable standing and corresponding failure to
disclose and/or join what are believed the real parties in interest, namely The
Denver Post and/or Media News Group, Inc.

I. RIGHTHAVEN’S DISMISSAL WITH PREJUDICE DOES NOT FORECLOSE AN

AWARD OF ATTORNEYS’ FEES

Righthaven inappropriately seeks to limit a rightful award of attorney’s fees under the

reasoning that it has dismissed Mr. Hill with prejudice. However, requiring payment of

attorneys’ fees upon a voluntary dismissal with prejudice is entirely appropriate where, as here,

one or more of the following circumstances are present: (a) exceptional circumstances justify an

award of fees in order to do justice; (b) plaintiffs’ claim[s] [are] frivolous and/or pursued in bad

3
faith; and/or (c) lacking substantial justification for litigation activity. See York v. Ferris State

Univ., 36 F. Supp. 2d 976, 980 (W.D. Mich. 1998); see also AeroTech, Inc. v. Estes, 110 F.3d

1523, 1528 (10th Cir. 1997); C.R.S. § 13-17-102 et seq. In similar cases involving intellectual

property rights, the Courts have found that a case may be deemed exceptional where there has

been some “material inappropriate conduct related to the matter in litigation…misconduct during

litigation, vexatious or unjustified litigation, conduct that violates Fed. R. Civ. P. 11, or other like

infractions.” Brooks Furniture Mfg. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005).

Righthaven’s conduct in bringing this suit and the manner in which it was prosecuted make this

an exceptional case justifying an award of attorney’s fees. Legal support for each of these

grounds will be taken up in turn.

II. THE DISTRICT COURT POSSESSES INHERENT AUTHORITY TO AWARD

ATTORNEYS’ FEES AS WELL AS OTHER SANCTIONS

In such exceptional cases, “[The Court] ha[s] the inherent power to impose a variety of

sanctions on both litigants and attorneys to regulate [its] docket, promote judicial efficiency and

deter frivolous findings." Houston v. Mile High Adventist Academy, 872 F. Supp. 829, 838 (D.

Colo. 1994) (J. Kane) (finding that Plaintiff’s counsel had recklessly created needless costs

entitling the opposing parties to relief). The inquiry with regard to sanctions pursuant to a court's

inherent power is whether a person has abused the judicial process by acting "in bad faith,

vexatiously, wantonly, or for oppressive reasons." Chambers v. NASCO, Inc., 501 U.S. 32, 45-

46, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Steinert v. Winn Group, Inc., 440 F.3d 1214, 1223

(10th Cir. 2006). The Tenth Circuit has, on multiple occasions, affirmed the Court’s inherent

power to impose attorneys’ fees for such exceptional cases. See Glass v. Pfeffer, 849 F.2d 1261,

1264-66 (10th Cir. 1988). Specifically, to ensure that the Courts are used as a forum for the

orderly resolution of good faith disputes, and to prevent and deter misuse of the judicial system,

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District Courts are specifically granted "inherent powers" to "levy sanctions in response to

abusive litigation practices." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-65, 100 S. Ct.

2455, 65 L. Ed. 2d 488 (1980); see also Morganroth & Morganroth v. DeLorean, 213 F.3d 1301,

1317 (10th Cir. 2000) (holding that "federal courts have . . . inherent power to sanction parties

for bad faith conduct in litigation"). Such inherent powers specifically include the authority to

assess fees. Link v. Wabash R. Co., 370 U.S. 626, 632 (1962).

Under analogous circumstances, courts have recognized that the motivations underlying

serial nuisance copyright suits must be deterred and recompensed by an award of attorneys’ fees.

See, e.g., Video-Cinema Films, Inc. v. CNN, Inc., 2003 U.S. Dist. LEXIS 4887, at 14-15

(S.D.N.Y. Mar. 31, 2003) (applying the Copyright Act to determine that “[p]laintiff’s conduct

was nothing more than an obvious effort to use the Copyright Act to secure payment from

Defendants…as such Plaintiff’s motivation was improper and weighed in favor of an award of

attorneys’ fees”); Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 894-896 (6th Cir.

2004) (applying the Copyright Act, attorneys’ fees, were in part, appropriate where plaintiffs

“choice to sue hundreds of defendants all at the same time, regardless of the strength of the

individual claims” resulted in their “dragnet inevitably [sweeping] up parties against whom they

had little or no chance of succeeding” and recognizing the District Court’s observation that

remaining copyright claims against other similarly situated Defendants were “for the sole

purpose of extracting settlement based on the cost of litigating further.”). The case now before

this Court is replete with examples of Righthaven’s bad faith, vexatious, wanton, obstinate and

oppressive behavior in bringing and prosecuting its case against Mr. Hill.

III. THE DISTRICT COURT POSSESSES INHERENT STATUTORY AUTHORITY

UNDER 28 U.S.C §1927 TO AWARD ATTORNEYS’ FEES

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 Pursuant to 28 U.S.C. §1927, District Courts possess independent statutory authority to

impose sanctions such as attorneys’ fees. Specifically, a “district court may assess an award of

fees against an attorney appearing before the court if: (1) the actions of the attorney multiply the

proceedings, and (2) the attorneys’ actions are vexatious and unreasonable.” Dreiling v. Peugot

Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985). Sanctions under §1927 are

appropriate when an attorney acts "recklessly or with indifference to the law." Dominion Video

Satellite, Inc. v. Echostar Satellite LLC, 430 F.3d 1269, 1278 (10th Cir. 2005). (citing Braley v.

Campbell, 832 F.2d 1504, 1511 (10th Cir. 1987). Sanctions are also appropriate "when an

attorney is cavalier or bent on misleading the court; intentionally acts without a plausible basis;

[or] when the entire course of the proceedings was unwarranted." Miera v. Dairyland Ins. Co.,

143 F.3d 1337, 1342 (10th Cir. 1998) (quotations and internal citations omitted). Noteworthy is

that a finding of bad faith is not necessary to impose sanctions under §1927. Hamilton v. Boise

Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008).

IV. THE DISTRICT COURT POSSESSES INHERENT STATUTORY AUTHORITY

UNDER COLORADO LAW TO AWARD ATTORNEYS’ FEES

An award of attorneys’ fees to Mr. Hill is also appropriate under Colorado section §13-

17-102 of the Colorado Revised Statutes, which reads in part:

(2). . . in any civil action of any nature commenced or appealed in any court of
record in this state, the court shall award, by way of judgment or separate order,
reasonable attorney fees against any attorney or party who has brought or
defended a civil action, either in whole or in part, that the court determines lacked
substantial justification.
....
(4) The court shall assess attorney fees if, upon the motion of any party or the
court itself, it finds that an attorney or party brought or defended an action, or any
part thereof, that lacked substantial justification or that the action, or any part
thereof, was interposed for delay or harassment or if it finds that an attorney or
party unnecessarily expanded the proceeding by other improper conduct . . . . As
used in this article, "lacked substantial justification" means substantially
frivolous, substantially groundless, or substantially vexatious.

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Colo. Rev. Stat. § 13-17-102 (2), (4). Imposition of attorneys’ fees under Section §13-17-102

apply to claims brought in the District of Colorado. See Harrison v. Luse, 760 F. Supp. 1394,

1400 (D. Colo.), aff'd, 951 F.2d 1259 (10th Cir. 1991). Further, the breadth of Section §13-17-

102 is more expansive than other federal intellectual property statutory models. In particular the

Tenth Circuit indicated such a state-based statutory provision does not require a party to prevail

and applies regardless of whether the case is exceptional. Lorillard Tobacco Co. v. Engida, 611

F.3d 1209, 1217 (10th Cir. Colo. 2010) In fact, an award of attorney fees under Section §13-17-

102 is generally mandatory upon finding any part of an action was brought without substantial

justification—meaning such action or part thereof was substantially frivolous, groundless, or

vexatious—or was interposed for delay, harassment, or for the purposes of unnecessarily

expanding the litigation. See Harrison, 760 F. Supp. at 1400. Further, "[a] vexatious claim or

defense is one brought, or maintained in bad faith. Bad faith may include conduct that is

arbitrary, vexatious, abusive, or stubbornly litigious, and may also include conduct aimed at

unwarranted delay or disrespectful of truth and accuracy." Zivian v. Brooke-Hitching, 28 P.3d

970, 974 (Colo. Ct. App. 2001).

Having reviewed each of the relevant legal standards, and to the extent that certain

factual assertions justify an award of attorneys’ fee under multiple theories of law, Mr. Hill will

now review each of the individual allegations in turn.

A. RIGHTHAVEN’S FOR-PROFIT-LITIGATION MODEL IS BASED ON

DISMISSING ACTIONS THAT BECOME UNPROFITABLE OR WILL
RESULT IN ADVERSE PRECEDENT AND PURSUED IN BAD FAITH

A District Court “retains discretion to determine when a losing plaintiff’s claims or

conduct in the litigation are so exceptional as to warrant the assessment of attorney fees.”

National Ass'n of Prof'l Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143,

7
1148 (10th Cir. 2000). Righthaven suggests that a defendant may not recover attorneys’ fees

when a plaintiff voluntarily dismisses an action with prejudice absent exceptional circumstances.

However, Righthaven is wrong in its assertion that this case is not exceptional. Regardless, even

in the absence of a specific statutory authorization, Rule 41 allows attorneys’ fees as a condition

to a voluntary dismissal in exceptional circumstances where they are needed “in order to do

justice.” See York v. Ferris State Univ., 36 F. Supp. 2d 976, 980 (W.D. Mich. 1998); citing

Smoot v. Fox, 353 F.2d 830, 833 (6th Cir. 1965).

One example of an “exceptional circumstance” is “when a litigant makes a repeated

practice of bringing claims and then dismissing them with prejudice after inflicting substantial

litigation costs on the opposing party [or parties] and the judicial system.” AeroTech, Inc., 110

F.3d at 1528. Such is clearly the case here. Righthaven’s for-profit litigation strategy is to sue

first and ask questions later, and then withdraw the suit in an effort to escape liability for its

actions when it cannot extract a settlement or is challenged as to the validity of its claims. This

pattern has been followed in the instant action as well as other cases brought by Righthaven,

making Mr. Hill’s case exceptional and ripe for an award of attorneys’ fees.

This calculated dismissal tactic has been employed in numerous other cases, where facing

stiff legal opposition, Righthaven simply voluntarily dismisses its action to prevent defendants

from raising legitimate defenses and foreclose an award of attorneys’ fees. Such problematic

actions by Righthaven are dismissed solely to evade the costs of litigation which it had itself

initiated. By way of illustration, in a separate Righthaven case, facing a strong and coordinated

legal response they unilaterally dismissed their claims with prejudice, then brazenly attempted to

condition that dismissal on the stipulation that the Court preclude Defendant’s statutory claim for

8
attorneys’ fees. (See Righthaven v. Democratic Underground, et al., Case No. 2:10-cv-01356-

RLH-RJJ, Dkt. No. 45).

In another problematic case, when faced with the embarrassment of filing a complaint in

the US District Court of Nevada, which was, in fact, captioned and specifically alleged venue

and jurisdiction were in the Southern Distinct of California, against a chronically ill and disabled

veteran, and after failing to serve several Defendants in a timely fashion, or with the proper

complaint, in the face of another coordinated legal response by counsel, Righthaven sought

dismissal with prejudice conditioned on Defendant’s agreement to foreclose any future claim for

attorneys’ fees. (See Righthaven v. Leon et al., Case No. #: 2:10-cv-01672-GMN -LRL, Dkt: 8,

41, 43, and 44).

In yet another inappropriate case, Righthaven brought suit in this Court, seeking its

standard remedy of $150,000 in statutory damages as well as attorneys’ fee and domain seizure

against a prominent reporter that had written a story highlighting Righthaven’s for-profit-

litigation model. (See Righthaven v. Gardner Case No. #: 1:11-cv-00777-JLK Dkt. No. 1, 4 and

6). The story in question used Righthaven’s own public Court filing, which included a screen

capture of the now infamous “TSA Pat-Down Photo.” This was an unambiguous case of fair-use

under 17 U.S.C. §107. Righthaven dismissed, seemingly in an effort to cut off further accrued

liability for attorneys’ fees.

Mr. Hill is acutely aware that the Court must adjudicate only the facts and allegations as

they are before it. However, where a pattern of abusive litigation is clear, the Court possesses

discretion to survey the lay of the land. Judicial notice is particularly applicable to the court's

own records of prior litigation closely related to the case before it. See St. Louis Baptist Temple

v. FDIC, 605 F. 2d 1169, 1171-1172 (10th Cir.1979) ("federal courts, in appropriate

9
circumstances, may take notice of proceedings in other courts, both within and without the

federal judicial system, if those proceedings have a direct relation to matters at issue.").

This is especially true for an attorney-based entity like Righthaven that has, to date, filed

approximately 275 nearly identical lawsuits, many of which are currently pending before this

Court. Righthaven may claim that each instance must be taken in isolation. However this denies

the reality that Righthaven continues to “inflict[] substantial litigation costs on the opposing

party [and parties] and the judicial system.” Steinert v. Winn Group, Inc., 440 F.3d 1214, 1222

(10th Cir. 2006) (quoting AeroTech, Inc., 110 F.3d at 1528). Left unfettered, Righthaven will be

free to bring additional lawsuits inflicting substantial cost on ill-equipped Defendants in foreign

jurisdictions, most of whom will be forced to represent themselves pro se before this Court

further complicating matters. Then, when faced with opposition, Righthaven can simply dismiss

the case and move onto the next one, leaving opposing parties with nothing but a bill and a

markedly diminished faith in the judicial process.

B. RIGHTHAVEN’S DELIBERATE ACT OF FILING IN A COURT WHERE

JURISDICTION WAS OBVIOUSLY NOT AVAILABLE JUSTIFIES AN
AWARD OF ATTORNEYS FEES

This Court lacks personal jurisdiction over Mr. Hill. Righthaven’s intentional and

deliberate act of bringing suit against Mr. Hill in a forum where jurisdiction obviously did not

exist has required a lengthy and unnecessary response which has greatly multiplied the

proceedings and exhausted significant private and judicial resources. In support of its required

prima facia showing, Righthaven simply provides allegations and thread-bare declarations

regarding jurisdiction which are not based on any reasonable inquiry or good faith assertions of

fact regarding this case but are solely formulaic boiler-plate repetitions of unsupported legal

10
elements and conclusions. Such “threadbare recitals” and “conclusory statements” should be

disregarded. Ashcroft v. Iqbal, 129 U.S. 1937, 1949 (2009).

More concisely, Righthaven’s jurisdictional arguments are nothing more than an attempt

to circumvent clear Colorado and Tenth Circuit jurisdiction precedent. Allison v. Wise, 621 F.

Supp. 2d 1114 (D. Colo. 2007); See also Trierweiler v. Croxton & Trench Holdine Corp., 90

F.3d 1523 (10th Cir. 1996); Sharpshooter Spectrum Venture, LLC, v. Consentino, 2009 WL

4884281 (D. Colo.); Melea, Ltd., v. Jawer SA., 511 F.3d 1060 (10th Cir. 2007); Dudnikov v.

Chalk Vermillion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008); McAvoy v. District Court in

and for the City and County of Denver, 757 P.2d 633 (Colo. 1988); Soma Med. Int’l v. Std. Chtd.

Bank, 196 F.3d 1292 (10th Cir. 1999); Regional Airline Management Systems, Inc. v. Airports

USA, Inc., 2007 WL 1059012 at *5 (D. Colo. 2007); Wenz v. Memery Crystal, 55 F.3d 1503

(10th Cir. Colo. 1995); Amax Potash Corp. v. Trans-Res., Inc., 817 P.2d 598, 600 (Colo. Ct.

App. 1991); Shon v. District Court, 605 P.2d 472 (Colo. 1980); Shrader v. Biddinger, 2011 U.S.

App. LEXIS 3797 (10th Cir. 2011).1

Righthaven has failed to allege or show any act even occurred in the forum state. Clearly

such a position is not accepted in this jurisdiction where as a matter of law, “the place of the

injury is the place where the [infringement] is committed.” Allison, 621 F.Supp. 2d at 1120

(holding that Colorado was not the place of the alleged copyright infringement, nor its harm

when the events that gave rise to an allegation of copyright infringement occurred in a different

state and where the defendant had never physically entered Colorado.) Since Colorado is not the

place of the alleged wrong, or its harm, and Mr. Hill has never entered, or had any contacts with

Colorado, specific jurisdiction cannot be exercised in this forum. Mr. Hill does not transact

1
A more detailed exposition of the relevant jurisdictional aspects of this case have been previously submitted to this
Court in Mr. Hill’s Omnibus Motion to Dismiss Docket No.: 12

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business in, nor has he ever directed any activities in or to Colorado, or to residents of Colorado.

There is no evidence that anyone in Colorado, save Righthaven’s counsel (residing in Nevada

no-less), viewed or downloaded the subject image from Mr. Hill’s website.

Finally, and perhaps most fatal to Righthaven’s claim, is the fact that a simple

investigation of the parties and websites involved would have quickly revealed that not only did

Mr. Hill have no contacts with Colorado, but that Mr. Hill first discovered the photo in question

on an apparently California based website, which is actually hosted in Indiana. (See Hill Motion

Decl. ¶34-39, Hill Motion Exhibits D, E, and J, Dkt. 12) Righthaven has not contradicted such

facts, thus, it stands uncontested that Mr. Hill, from his home in North Carolina, accessed an

apparent California based website, through a web-host server in Indiana, then visited another

amateur blog with no apparent connection to Denver or Colorado, and innocently copied onto his

blog the subject photo and an accompanying parody article with what he thought was appropriate

attribution to the original source. The alleged infringing photo was then passively displayed, free

of charge to every person in the world with an internet connection, and the inclination to visit his

site for a total of six days. All of the aforementioned uncontested actions occurred without ever

physically or virtually entering the state of Colorado.

Mr. Hill believes Judge Posner’s recitation on the penalty that should be paid for

plaintiffs that ignore basic jurisdictional requirements is especially instructive. Specifically,

where an action that was obviously and deliberately filed in a Court where no personal

jurisdiction exists over the Defendant, Judge Posner soundly reasoned:

“[T]he interest of justice is not served by allowing a plaintiff whose attorney

committed an obvious error in filing the plaintiff's action in the wrong court, and
thereby imposed substantial unnecessary costs on both the defendant and the
judicial system, simply to transfer his/her action to the proper court, with no cost

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 to him/herself or his/her attorney…[T]he proper penalty for obvious mistakes that
impose costs on opposing parties and on the judicial system is a heavy one. . . . If
the result in the present case seems harsh, that is because the costs to [the
plaintiff] are palpable where the benefits are largely invisible. But the benefits are
not trivial; litigants and the public will benefit substantially in the long run from
better compliance with the rules limiting personal jurisdiction.” Nichols v. G.D.
Searl & Co., 991 F.2d 1195, 1201 (4th Circuit. 1993) (emphasis added) (citing in
part Judge Poser’s analysis in Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986).

Righthaven’s only cognizable rationale for jurisdiction in Colorado is that, in fact, it is

acting as a proxy plaintiff for The Denver Post. However, Righthaven had the facts available to

it, and even showed in its own pleadings that there simply is no basis upon which to confer

personal jurisdiction over Mr. Hill in Colorado. Such motivation is clearly duplicitous and

improper. Righthaven has committed the obvious error of filing this action in the wrong court,

thereby imposing substantial unnecessary costs on both Mr. Hill and the judicial system.

Righthaven should not be rewarded, nor should Mr. Hill be punished for such “mistakes” Id. The

appropriate penalty for such an obvious and deliberate action is an award of attorneys’ fees.

C. RIGHTHAVEN SOUGHT RELIEF UNSUPPORTABLE BY LAW

Righthaven inappropriately and without substantial justification sought remedies not

authorized by the Copyright Act, particularly the seizure and transfer of Mr. Hill’s domain name

necessitating a vigorous response greatly multiplying these proceedings. The remedies available

to a plaintiff in a copyright infringement action “are only those prescribed by Congress.” Sony

Corp., et al., v. Universal City Studios, Inc., et. al., 464 U.S. 417, 431(1984) (quoting Thompson

v. Hubbard, 131 U.S. 123, 151 (1889)), and they do not include transfer of domain names. See

17 U.S.C. § 501 et seq. In addition, pursuant to Rule 65(d)(2), injunctions may only bind: (a) the

parties; (b) the parties’ officers, agents, servants, employees, and attorneys; and (c) other persons

13
who are in active concert or participation with the parties or their agents. Fed. R. Civ. P.

65(d)(2). Since courts may not issue binding injunctive relief against individuals or entities not

identified by Rule 65(d)(2), such relief is also unsupportable as a matter of law. See, e.g., Med.

Mut. Ins. Co. of Maine v. Indian Harbor Ins. Co., 583 F.3d 57, 64 (1st Cir. 2009); Bobolas v.

Does 1-100, No. CV-10-2056-PHX-DGC, 010 U.S. Dist. LEXIS 110856, at 6 (D. Ariz. Oct. 1,

2010) (the district court lacks power to enter an injunction against non-party webhost and

domain name registrar). Righthaven’s request also represents an impermissible constitutional

restraint on Mr. Hill’s First Amendment Rights as a domain name itself represents protected

speech. See Taubman Co., v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003). Righthaven’s claims

for relief are unsupportable by law, in derogation of Mr. Hill’s Constitutional rights and thus

merit an award of attorney’ fees.

D. RIGHTHAVEN SEEKS WINDFALL PROFITS FOR ALLEGED DE

MINIMIS ACTS

Mr. Hill posted an unattributed derivative work on his not-for-profit website for

approximately 6 days. (See Hill Decl.¶ 41 Dkt. 12, Compl. ¶ 7 and Compl. ¶ 25.) Mr. Hill does

not refute this fact. (See Compl. Ex. 3.) In response, Righthaven demands statutory damages of

up to $150,000, attorneys’ fees, and seizure of Mr. Hill’s domain. As will be detailed below,

even Righthaven’s first settlement offer of $6,000, or approximately $1000 per day the subject

image was displayed, was clearly calculated to provide a windfall, grossly out of proportion to

any actual harm that could be shown. (See Hill Answer Dkt. 4) Righthaven took no action to

mitigate any accrued damages. Such windfall bear no reasonable relationship to any

compensatory damages that could possibly be shown, nor can it deter infringement, as it has

been previously shown that Mr. Hill was completely unaware of Righthaven or its alleged rights

in the subject image. Cf. Doehrer v. Caldwell, 1980 U.S. Dist. LEXIS 10713 *3 (N.D. Ill. 1980).

14
(finding that “[a] mechanical application of the statutory damage provision of the Copyright Act

leads to absurd results.); Sony BMG Music Entertainment v. Tenenbaum, 721 F. Supp. 2d 85, 117

(D. Mass. 2010) (holding that $2,250 was the “outer limit” of damages that could

constitutionally be imposed for the act of downloading a song).

Righthaven has not suffered any cognizable Colorado harm whatsoever from the

infringement it alleges. In fact, Righthaven cannot suffer any harm from lost profits or a lost

market for the work, as it does not produce or sell any content. Righthaven’s business model

dictates that it acquires just enough rights in a specific work to file numerous lawsuits seeking a

windfall profit from the creative labor of others. Such is contrary to not only the law but the

purposes of the Copyright Act. Silvers v. Sony Pictures Entmt., Inc., 402 F.3d 881, 887 (9th Cir.

2005). Such motivations are clearly objectively unreasonable, and meant solely to provoke

multiple lawsuits seeking a windfall profit for de minimis or even excusable acts and justify an

award of attorneys’ fees.

E. RIGHTHAVEN’S STATEMENTS TO THIS COURT CONTRADICT THE

EVIDENCE ON RECORD

Contrary to Righthaven’s own declarations provided to this Court, upon learning of Mr.

Hill’s medical condition it did not, in fact, immediately seek for an amicable resolution of this

case for a nominal sum of $1.00 among other seemingly reasonable terms. (See Mangano Decl

¶3 Dkt. 3). In fact, the record shows that Righthaven was aware of Mr. Hill’s medical condition

in approximately early February of 2011. (Hill Answer Dkt. 4). As the record further shows,

Righthaven made no such reasonable offer upon learning of Mr. Hill’s medical condition.

However, immediately upon becoming aware of Mr. Hill’s medical conditions, an offer was

made. However, as will be detailed below, such offer was far removed from what has been

characterized to this Court. (See Hill Answer Dkt. 4).

15
 The standards are clear, “[w]hen parties and lawyers make false statements to their

adversaries and to the court that generate costs, there is every reason for them to pay those

costs.” Margo v. Weiss, 1998 U.S. Dist. LEXIS 17258 *8 (S.D.N.Y. 1998). Righthaven’s

contradictory and/or misleading representations have required a vigorous response and have

greatly obfuscated and prolonged these proceedings so as to justify an award of attorney’s fee.

F. RIGHTHAVEN MADE LEGALLY UNSUPPORTABLE THREATS

AGAINST MR. HILL IN AN EFFORT TO COERCE SETTLEMENT

Mr. Hill and his Mother, Roberta Hill, upon learning of the pending litigation against

him, contacted counsel for Righthaven directly and informed them of his medical conditions and

financial hardship. (See Hill Answer Docket #4). Contrary to the declarations provided to this

Court, upon learning of his medical condition Righthaven’s initial offer to Mr. Hill was not the

reasonable sum of $1.00, but the outrageous sum of $6,000 - or approximately 75% of Mr. Hill’s

yearly income as provided by his Social Security Disability Insurance (SSDI) (See Hill Answer

Docket #4). Further, conforming to Righthaven’s “settlement playbook,” in response to Mr.

Hill’s disclosure of his financial and medical conditions and his inability to pay such an amount,

counsel for Righthaven responded simply that it would cost more than $6000 to litigate the case.

(See Hill Answer Docket #4). Again, and contrary to Righthaven’s declarations, counsel for

Righthaven indicated that they would continue the lawsuit and garnish Mr. Hill’s SSDI in the

amount of $50 dollars a month until the $6000 had been paid - or approximately 10 years. (See

Hill Answer Docket #4). However, as shown to the Court by Mr. Hill, such federal disability

disbursements by law cannot be part of any award or judgment. (See Hill Answer Docket #4) As

such, any reasonable observer must conclude that this threat was legally unsupportable,

objectively unreasonable, made in bad faith and made solely for a vexatious and oppressive

purpose. Courts have indicated that an award of fees is necessary to guard against Plaintiffs’

16
“take no prisoners tactics.” Bridgeport Music, Inc. v. Lorenzo, 255 F. Supp. 2d 795, 802 (M.D.

Tenn. 2003). Such unreasonable conduct justifies an award of attorneys’ fees.

G. RIGHTHAVEN UNREASONABLY EXTENDED THE PROCEEDINGS IN

AN EFFORT TO INCREASE LITIGATION COSTS AND COERCE
SETTLEMENT
Contrary to Righthaven’s own statements provided to this Court, upon learning of Mr.

Hill’s medical condition, it did not immediately seek to amicably resolve the cases for the

nominal sum of $1.00, among other “seemingly” reasonable terms. The facts clearly show that

on February 28, 2011, the parties engaged in preliminary settlement negotiations; however such

negotiations quickly broke down. After becoming aware of a critical internet blog article

highlighting Mr. Hill’s case, late in the day, Righthaven contacted counsel for Mr. Hill, and,

contrary to statements before this Court, rejected what was actually Mr. Hill’s, not Righthaven’s

offer of $1.00. Counsel for Righthaven indicated that settlement could only be achieved if

counsel for Mr. Hill offered a written apology, and that it was Righthaven’s intention to prolong

the proceedings in order to secure such an apology. In light of Righthaven’s unreasonable

demands, all previous offers were taken off the table (Exhibit A - which is a true a correct copy

of an email correspondence from Righthaven’s counsel confirming the discovery of the blog post

and that settlement talks had broken down). It is clear that Righthaven initiated and prosecuted

this case in a “fashion that would multiply the fees and encourage nuisance settlement.”

Bridgeport Music, Inc. v. Diamond Time Ltd., 371 F. 3d 883, 896 (6th Cir. 2005). Such

unreasonable and unjustified conduct warrants an award of attorneys’ fees.

H. RIGHTHAVEN’S INTENTIONAL DELAY DURING SETTLEMENT

PREJUDICED MR. HILL FORECLOSING SETTLEMENT OPTIONS

Righthaven’s intentional delay and inability to timely prepare a promised written

settlement proposal prior to Mr. Hill’s court appointed deadline to file a responsive pleading

17
foreclosed any opportunity to settle the case, and greatly multiplied these proceedings. Such

delay was inexcusable, and meant solely to gain an advantage and increase the cost of litigation

and justifies an award of attorneys’ fees. See e.g. Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d

Cir. 1986) (finding an “[a]ward of sanctions under…is proper when attorney's actions are so

completely without merit as to require conclusion that they must have been undertaken for some

improper purpose, such as delay”). Specifically, Courts have routinely found that such bad faith

hard-ball litigation tactics meant to multiply the cost of proceedings and coerce settlements

justifies an award of attorneys’ fees. Consolidated Sawmill Mach. Int’l, Inc., v. Hi-Tech Eng’g,

Inc., 879 F. Supp 945, 947 (D. Ark 1995) (finding that efforts to “cripple defendant with

litigation expenses” justified an award of attorneys’ fees); See also General Universal Sys., Inc.,

v. Lee, 379 F.3d 131, 147-148 (5th Cir. 2004)

The facts, as supported by declaration and documentary evidence, confirm that on March

9, 2011, the parties re-initiated settlement negotiations. During that brief telephonic conference,

counsel for Mr. Hill made no offers, counter-offers, nor were there any substantive discussion as

to the general terms, except that no agreement could be even considered without seeing the terms

in writing since the Righthaven representative did not have the authority to bind the parties.

Counsel for Mr. Hill made no indication that such terms were even acceptable, or that Mr. Hill

would find them acceptable after review. Further, in that conference, in-house counsel for

Righthaven, Anne Pieroni, clearly and specifically indicated that any such settlement offer was

not because of Mr. Hill’s medical condition. (See Decl. Kerr¶ 2). Such statements being

contradictory to declarations previously offered to this Court.

During the March 9, 2011 conference, counsel for Righthaven, indicated that such written

terms would be completed within two days and forwarded for consideration by at least March 11,

18
2011, a date well before Mr. Hill’s March 21, 2011 response deadline. (See Decl. Kerr¶ 2) (See

Exhibit B - which is a true and correct correspondence from counsel confirming the expected

date of the written settlement terms). On the promised date of March 11, 2011, Ms. Pieroni

communicated that Righthaven had yet to prepare the promised written proposal, and that it

would be provided no later than the following Monday - March 14, 2011. Such written proposal

again failed to materialize on this date. (See Exhibit C - which is a true and correct

correspondence from counsel confirming the delay). On Tuesday, March 15, 2011, counsel for

Righthaven again contacted counsel for Mr. Hill indicating that she was “almost done” with the

written proposal and that “she would be emailing it today.” Such written proposal again failed to

materialize on this date. (See Exhibit D - which is a true and correct correspondence from

counsel). Knowing that the Court mandated response deadline of March 21, 2011 was fast

approaching, and with no written proposal to even begin settlement negotiations, Mr. Hill had no

choice but to prepare his response. On March 22, 2011, the day after Mr. Hill’s response was

timely filed, Righthaven, finally sent the promised confidential written settlement proposal for

review. (See Exhibit E - which is a true and correct correspondence from Righthaven’s counsel

confirming that the settlement was not delivered until after Mr. Hill’s response deadline).

Righthaven had approximately 13 days to reduce to writing a settlement agreement

consisting almost entirely of standard boiler-plate language. Righthaven was aware of Mr. Hill’s

response deadline, and further understood that counsel for Mr. Hill had only agreed to review the

written terms and that no substantive negotiation had occurred. Clearly, Righthaven had no

intention of providing the promised written proposal for Mr. Hill’s consideration. Such

intentional delay was solely to leverage Mr. Hill and his counsel in the hopes that they would not

be willing to commit the time and resource to filing a complicated and detailed responsive

19
pleading. Courts have routinely found that such bad faith “hard-ball” litigation tactics meant to

cripple the Defendant with litigation expenses merit and award of attorneys’ fees. Consolidated

Sawmill Mach. Int’l, Inc., v. Hi-Tech Neg’g, Inc., 879 F. Supp 945, 947 (D. Ark 1995); See also

General Universal Sys., Inc., v. Lee, 379 F.3d 131, 147-148 (5th Cir. 2004).

Settlement simply cannot move forward quickly or amicably when one side refuses to

timely participate. Contrary to statements before this Court, settlement was never at any time

imminent, nor were Mr. Hill’s legitimate concerns, as described by Righthaven “an endless

stream of issues.” (Exhibits F - which is a true and correct email communication to Righthaven

detailing a limited number of Mr. Hill’s initial settlement concerns.) Such delay tactics were

conducted to game the negotiations and clearly evidence Righthaven’s bad faith and warrant an

award of attorney’s fees.

I. RIGHTHAVEN DEMANDED SETTLEMENT TERMS THAT WERE

OBJECTIVELY ONEROUS, OPPRESSIVE, AND MEANT SOLELY TO
MITIGATE RIGHTHAVEN’S LIABILITY

Righthaven’s entire business is dictated on positioning itself to uncover potential

instances of infringement of other’s works, then, after allegedly obtaining rights, use the

“[c]opyright Act to secure payment from defendants.” Video-Cinema Films, Inc. 2003 U.S. Dist.

LEXIS 4887 *14-15. (finding that the copyright holder’s motivation was improper, as the owner

did not purchase the [rights in the works] until after the [they] were broadcast and was obviously

using the Copyright Act to secure payment for the [Defendants’] fair use of the [work].)

Principally, Righthaven’s for-profit-litigation model is geared to “make litigation so unpleasant

and so costly that [any] defendant[] would be forced to settle.” See generally Compaq Computer

Corp., v. Ergonome Inc., 387 F.3d 403 (5th Cir. 2004).

20
 As outlined above, and consistent with the disclosure in this case, even after

unreasonably delaying release of their initial proposed terms until after Mr. Hill responded with a

motion for dismissal and attorneys’ fees, Righthaven proceeded to demand terms were

completely unreasonable and solely offered to harass, vex, and embarrass Mr. Hill, his counsel,

to preserve Righthaven’s business model, as well as mitigate other litigation actions. (See herein

attached as Exhibit G - which is a true and correct copy of the written settlement proposal

forwarded to Mr. Hill’s counsel on March 22, 2011 - confidentiality having been waived by

Righthaven’s unilateral disclosure of their terms in its prior response) As a condition of release:

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. (¶ 2). Such overbroad demand being subject to an award of
liquidated damages of $10,000 per breach. (¶ 11).

2. Righthaven inappropriately sought to bind non-parties to the terms of the settlement,

namely Roberta Hill, and Mr. Hill’s counsel. (Preamble and ¶ 9 )

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. (¶
9 ).

4. Righthaven inappropriately sought to use the settlement agreement to obtain potentially

privileged and confidential information from Mr. Hill’s counsel. (¶ 9 ).

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 (¶ 9).

6. Righthaven inappropriately sought to condition the release of claims against Mr. Hill
based on relinquishing his first amendment rights. (¶ 9).

7. Righthaven inappropriately sought to condition the release of claims against Mr. Hill to
stifle public criticism. (¶ 8, 9).

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. (¶ 9 ). Such onerous demand
being subject to an award of liquidated damages of $10,000 per breach. (¶ 11).

21
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.
(¶ 9).

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).

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. (¶ 19).

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. (¶ 20).

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. (¶ 8-10, and Schedule 4).

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. (¶ 8-10, and Schedule 4).

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. (¶ 8-10, and Schedule 4).

16. Righthaven inappropriately sought to have Mr. Hill provide a false apology for his
actions which he maintains are fair use under the law. (¶ 8-10, and Schedule 4).

17. Righthaven inappropriately sought to extract a false apology from Roberta Hill’s for
critical statements regarding Righthaven. (¶ 8-10, and Schedule 4).

18. Righthaven inappropriately sought to extract a false concession from Mr. Hill’s counsel
for critical statements made regarding Righthaven’s business model. (¶ 8-10, and
Schedule 4).

22
 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. (¶ 8-10, and Schedule 4).

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. (¶ 8-10, and Schedule 4).

On their face such terms are completely unreasonable and solely offered to harass, vex,

and embarrass Mr. Hill, his counsel, and to preserve Righthaven’s business model, as well as

mitigate other litigation conduct. Such actions clearly justify an imposition of attorneys’ fees.

J. NO FINANCIAL JUDGMENT COULD BE OBTAINED OR ENFORCED

AGAINST MR. HILL AND THE CASE WAS INTENTIONALLY
CONTINUED FOR A FRIVOLOUS AND VEXATIOUS PURPOSE

Mr. Hill has no recoverable assets. (See Hill Decl ¶ 44, Dkt. 12 ) As shown, Mr. Hill’s

only source of income for he and his Mother (who acts as his full-time caregiver) is his monthly

social security disability insurance (SSDI) disbursement. (See Hill Answer Dkt. 4). The record

shows that months prior to his eventual and sudden dismissal, Mr. Hill informed Righthaven that

his only source of income was, in fact, exempted under federal law from any judgment

Righthaven might hope to obtain, and pleaded that he be dismissed from the case in light of his

serious medical conditions.2 (See Hill Answer Dkt. 4). Righthaven initiated legitimate settlement

talks only after Mr. Hill obtained counsel, and only dismissed Mr. Hill after he filed a motion to

dismiss the case. In addition, since Mr. Hill’s website had long been suspended, injunction relief

was not longer applicable. (See Hill Decl ¶ 40, Dkt. 12 )

Such improper motivations have been found to affirmatively lead to a finding of

frivolousness. See Court in Eagle Servs. Corp. H2O Industries. Servs., 532 F.3d 620, 623 (7th

2
42 U.S.C. 407

23
Cir. 2008) (finding that “ …even if there was a copyright violation and…[plaintiff] has no

ground at all for obtaining a money judgment, the fact that his rights may have been violated

does not save his suit from being adjudged frivolous.”); See also Durr v. Intercounty Title Co.,

14 F.3d 1183, 1188 (7th Cir. 1994); Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1063,

1068-69 (Fed. Cir. 1987); Olympia Co. v. Celotex Corp., 771 F.2d 888, 893 (5th Cir. 1985).

Such conduct merits an award of attorneys’ fees.

K. RIGHTHAVEN LACKS STANDING AND HAS FAILED TO IDENTIFY

THE REAL PARTIES IN INTEREST OR JOIN INDISPENSABLE
PARTIES

Contrary to Righthaven’s claims of ownership, upon information and belief, The Denver

Post and/or its corporate parent Media News Group, Inc. are the real party(ies) in interest. (See

Compl. ¶ 7). Mr. Hill is cognizant that discovery into this issue has not occurred, and in light of

Righthaven’s dismissal, would likely not be an appropriate use of judicial resources, however

good cause exists to proceed with a discussion of these issues.

It is a matter of public record that Righthaven, similar to its association with The Denver

Post and MediaNews Corp., has formed an association with Stephens Media LLC, the parent

corporation of the Las Vegas Journal Review to act as a proxy plaintiff similar to the instant

action. As revealed in recently unsealed documents in the US District Court for the District of

Nevada, Righthaven entered into the secret Strategic Alliance Agreement (“SAA”), which

reveals a naked assignment to Righthaven of rights to sue for infringement, without conveying

any exclusive rights under Section §106 of the Copyright Act to exploit Stephens Media’s work.

(See Righthaven v. Democratic Underground, et al., Case No. 2:10-cv-01356-RLH-RJJ, Dkt.

No. 79) (See herein attached as Exhibit H - which is a true and correct copy of that SAA). The

SAA provides substantial evidence that:

24
 (1) Righthaven has been conveyed no rights in the work at issue other than the right to
sue for infringement, a fact that renders the assignment to Righthaven invalid.

(2) Stephens Media is the real party in interest, engaging Righthaven as its agent to
prosecute this action.

(3) Righthaven is to pay to Stephens Media fifty percent (50%) or settlement funds,
minus costs advanced or incurred by Righthaven.

(4) Righthaven has been granted no rights to exploit the work in question, and thus, for
the purpose of fair use analysis, can suffer no harm from the use of the subject image
alleged infringed by any punitive Defendant.

(5) Should Righthaven ultimately choose not to serve as agent to commence an

infringement action on a particular assignment, “then Righthaven shall reassign the
Assigned Copyright to Stephens Media.

(6) Stephens Media is granted a “declination right” providing it the ability to right to send
a “Declination Notice,” upon receipt of which Righthaven shall not take any
Infringement Action with respect to the particular putative infringer.

(7) Stephens Media retains an absolute right of reversion, subject only to later
reimbursement of Righthaven’s investment in the litigation.

Upon information and belief, a majority, if not all of the copyright infringement actions

that Righthaven has brought in the District of Colorado concern copyrights that were created by

The Denver Post and are still owned by MediaNews Group, Inc. Upon information and belief,

MediaNews Group Inc. and Righthaven have entered into an agreement similar to the SAA that

Righthaven entered into with Stephens Media. Such belief is supported by the fact that the

subject image currently appears on The Denver Post’s website with an identification suggesting

ownership by The Denver Post, not Righthaven.3 (See Compl. Ex. 3). In addition, the subject

photo has apparently been distributed through Associated Press (AP) news outlets designated ©

AP. (See Hill’s Mot. to Dismiss Ex. G, dkt. 12)

3
http://photos.denverpost.com/mediacenter/2010/11/dia-pat-downs-and-body-scans/

25
 If such allegations are ultimately proved to be true, Righthaven lacks standing to bring

these suits. Silvers F.3d at 887. As such, Righthaven has also failed to properly identify the

proper parties in interest as required in their Corporate Disclosure Statement filed with this Court

on April 5, 2011 (See Dkt. 13). In addition, Righthaven has failed to join all necessary and

indispensable parties. Such actions undoubtedly were brought before this Court with full

knowledge of their recklessly indifference to the law, and can only be reasonable characterized

as being vexatious and unreasonable. Dreiling v. Peugot Motors of Am., Inc., 768 F.2d 1159,

1165 (10th Cir. 1985).

V. AN AWARD OF ATTORNEYS’ FEES IS INDEPENDENTLY AUTHORIZED

UNDER SECTION §505 OF THE COPYRIGHT ACT

The Copyright Act authorizes an award of “reasonable attorneys’ fee to the prevailing

party as part of the costs.” 17 U.S.C. § 505 et seq. However, in light of Righthaven’s sudden

dismissal with prejudice, under Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health & Human Resource, Mr. Hill may not be determined by this court to be a

prevailing party. 532 U.S. 598 (2001). While alternative inherent statutory and common law

powers held by this Court provide sufficient avenues for obtaining the requested relief, pursuant

to our duties of candor, counsel concedes that this Court could find that such precedent may cut-

off an award of attorneys’ fees under Section §505. Such specific statutory authorization was

initially raised by Mr. Hill as he fully expected to prevail in this case. Mr. Hill, in good faith

believes that the exceptional factual circumstances described herein distinguish Buckhannon, and

a good faith extension of the law is required to reconcile the Section §505 fee-shifting provisions

of the Copyright Act with the for-profit copyright litigation model now before this Court. It is

believed such circumstances represent a case of first impression and warrant additional legal and

fact- based scrutiny.

26
 Mr. Hill would note conflicting authority on the matter highlighting that Righthaven’s

dismissal effects a full and final judgment on the merits in his favor, just as if the Mr. Hill were

to prevail at trial. see Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th Cir. 1997) (Defendant is

prevailing party upon voluntary dismissal with prejudice). In particular, “[n]othing in the

language of Rule 41 suggests that the prevailing defendant [who is voluntarily dismissed with

prejudice] should not enjoy the normal benefits of a final judgment in its favor.” Mother &

Father v. Cassidy, 338 F.3d 704, 710 (7th Cir. 2003). Mr. Hill would bring to the Courts

attention Judge Easterbrook’s well reasoned rationale in reversing a denial of attorneys’ fees in a

copyright suit after plaintiff’s dismissal with prejudice:

[Defendant] obtained a favorable judgment. That this came about when [plaintiff]
threw in the towel does not make [defendant] less the victor than it would have
been had the judge granted summary judgment or a jury returned a verdict in its
favor. [Plaintiff] sued; [Defendant] won; no more is required. . . . Because
[Defendant] is the prevailing party for regular costs, it must be the prevailing
party for the purpose of § 505, which allows an award of attorneys' fees as part of
costs.

Riviera Distribs., Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008). Riviera supports the position

that there “is no question that a dismissal with prejudice makes the defendant the prevailing party

for purposes of an award of attorneys’ fees under § 505.” Mostly Memories, Inc. v. For Your

Ease Only, Inc., 526 F.3d 1093, 1099 (7th Cir. Ill. 2008) citing Claiborne v. Wisdom, 414 F.3d

715, 719 (7th Cir. 2005). This is no less true when, as described above, the case is dismissed

because the plaintiff "threw in the towel"-- that is, where the dismissal is on the plaintiff's own

motion. Riviera at 928. Without such statutory fee-shifting available to Defendant’s such as Mr.

Hill, as has been seen in the instant action, there is simply no incentive for a plaintiff to act

rationally or seek reasonable settlement when clear and obvious flaws arise in the case. Such

reasoning is especially applicable in light of Righthaven’s for-profit litigation model, and its

27
obvious effort to “cut its losses and run out of court, using Rule 41 as an emergency exit.”

Cooter & Gell, 496 U.S. at 390.

CONCLUSION

For all of the reasons shown above, Mr. Hill respectfully requests an award of attorneys’

fees under 28 U.S.C §1927, the Court’s ability to issues award fees, Colo. Rev. Stat. § 13-17-

102(4) and Section §505 of the Copyright Act.

Respectfully submitted May 19th , 2011.

/s/David S. Kerr___________
David S. Kerr
Santangelo Law Offices, P.C.
125 South Howes St., 3rd Floor
Fort Collins, CO 80521
Facsimile: 970-224-3175
Telephone: 970-224-3100
Email: dkerr@idea-asset.com

Attorney for Brian Hill

28
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing REPLY TO
RIGHTHAVEN’S RESPONSE TO DEFENDANT’S MOTION FOR ATTORNEYS FEES
was served by EFS on this 19th day of May, 2011 upon the following counsel:

Steven G. Ganim
Righthaven LLC
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: (702) 527-5909
FAX: (702) 527-5909
sganim@righthaven.com

Shawn A. Mangano
Righthaven LLC
9960 West Cheyenne Avenue, Suite 170
Las Vegas, Nevada 89129-7701
Tel: (702) 527-5909
FAX: (702) 527-5909
shawn@manganolaw.com

/s/ David S. Kerr

Santangelo Law Offices, P.C.
125 South Howes St., 3rd Floor
Fort Collins, CO 80521
Facsimile: 970-224-3175
Telephone: 970-224-3100
Email: dkerr@idea-asset.com

29
 RELEASE AND SETTLEMENT AGREEMENT

This Release and Settlement Agreement (the “Agreement”) is made and entered into on
the ______ day of March, 2011 (the “Effective Date”) by and among Righthaven LLC, a Nevada
limited-liability company (“Righthaven”), Brian Hill (“Mr. Hill”) and Roberta Ruth Hill (“Ms.
Hill; collectively with Mr. Hill known herein as the “Defendants”) (Righthaven, Mr. Hill and
Ms. Hill individually, a “Party,” or collectively “Parties”).

In consideration of the covenants, warranties, and representations set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:

1. Certain terms used herein shall have the meaning ascribed to such terms as set
forth in Schedule 1 as well as otherwise herein. All of the defined terms as set forth herein and
in Schedule 1, if defined in the singular or present tense, shall also retain such general meaning if
used in the plural or past tense, and, if used in the plural or past tense, shall retain the general
meaning if used in the singular or present tense.

2. The Defendants, collectively and individually, covenant, warrant, and represent

that Righthaven owns the copyright as described in Schedule 2 (the “Righthaven Copyright”),
and that, as of the Effective Date, the Defendants do not possess, shall not Exploit (whether
directly or indirectly), and shall immediately cease to Exploit (whether directly or indirectly) any
Right in or to any Intellectual Property owned by Righthaven, including, without limitation, the
Righthaven Copyright, none of the Defendants, directly or indirectly, shall knowingly use any
Content that constitutes, comprises, is derivative of, or is substantially similar to the Righthaven
Copyright. None of the Defendants, collectively and individually, and none of the Defendants’
Affiliates shall contest Righthaven’s or Righthaven’s Affiliates’ Rights in and to the Righthaven
Copyright, or take any action whatsoever that hinders, disturbs, Encumbers, or in any way
interferes with or could hinder, Encumber, disturb, or interfere with Righthaven’s and
Righthaven’s Affiliates’ Rights in and to the Righthaven Copyright, with the federal registrations
of the Righthaven Copyright, or with any use for whatsoever purposes of the Righthaven
Copyright by Righthaven or Righthaven’s Affiliates.

3. The Defendants shall pay, within five (5) days after the Effective Date, to
Righthaven, with actual receipt by Righthaven within five (5) days after the Effective Date,
either by wire transfer in accordance with wiring instructions attached hereto as Schedule 3 in
readily available funds or by certified bank check also in readily available funds, one dollar
($1.00; the “Settlement Payment”).

4. The Defendants are jointly and severally responsible for the entire Settlement
Payment to Righthaven within five (5) days after the Effective Date, regardless of the individual
share of liability by each Party.

5. Within ten (10) days after the Effective Date, Righthaven shall execute and file
with the Court a Notice of Settlement, in Righthaven’s pending action in the United States
District Court for the District of Colorado against the Defendants, case number 1:11-cv-00211-
JLK (the “Case”). Within ten (10) Business Days after the Payment Date, as defined in Section
7, Righthaven shall execute and file with the Court a voluntary dismissal, with prejudice, of
Righthaven’s pending action in the Case. The Defendants, collectively and individually, shall
reasonably cooperate in any action required to effectuate the voluntary dismissal of the Claims
against the Defendants.

6. As of the Effective Date, the Defendants hereby unconditionally release and

discharge Righthaven, and Righthaven’s Affiliates, from all Claims, held or potentially held, by
the Defendants, and Losses arising out of said Claims, in existence from the beginning of time up
to and including the Effective Date (whether mature or immature, known or unknown, asserted
or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and due
or to become due) (the “Defendants’ Release”); provided, however, that the Defendants’ Release
does not apply to any breach by Righthaven pursuant to or arising from this Agreement.

7. After Defendants’ completion of all requirements to be performed pursuant to

Sections 3 and 9 (the “Payment Date”), Righthaven shall release and discharge the Defendants,
and the Defendants’ Affiliates, from all Claims, held or potentially held by Righthaven, and
Losses arising out of said Claims, in existence from the beginning of time up to and including the
Effective Date (whether mature or immature, known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and due or to become
due) (“Righthaven’s Release”); provided, however, that Righthaven’s Release does not apply to
any breach by the Defendants, pursuant to or arising from this Agreement.

8. No Party, or the Parties’ Affiliates, shall under any circumstance Disclose the
amount of the Settlement Payment or the terms of the settlement agreement, herein, unless
obligated to do so through governmental order, court order or as may otherwise be required by
law, and then only after prompt written notice (including copies of any such order) to the other
Party, in accordance with Section 22, allowing time for the other Party to object to such order.
Each Party shall have the right to Disclose to any other Person that the Parties resolved the
disputes arising out of the Defendants’ use of the photograph protected by the Righthaven
Copyright and that the Parties agreed that the Defendants would cease use of the photograph
protected by the Righthaven Copyright. Nothing in this Section 8 shall prevent either Party from
asserting or pursuing any claim to enforce the terms of this Agreement. Except as permitted by
this Agreement, in the event that a Party should Disclose the amount of the Settlement Payment
or the terms herein, in any manner or at any time to any other Person, then the other Party shall
be entitled to all rights, remedies and elections, at law and in equity, for or in connection with
such unauthorized Disclosure, which may include, without limitation, a permanent injunction to
prevent any unauthorized Disclosure, as well as those described in Section 11. The mutually
agreeable press release (the “Press Release”), attached hereto as Schedule 4, and as stated in
Section 10, shall not be subject to the requirements set forth in this Section 8.

9. 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.

10. Righthaven shall be entitled to submit the Press Release to any Media, or any
other source, company or individual, that Righthaven, within its sole discretion, chooses to, in
perpetuity.

11. In the event of a breach of Section 8 (the “Confidentiality Provision”) or Section 9

(the “Cease and Desist Provision”) by Mr. Hill or Ms. Hill, Defendants shall pay to Righthaven,
as liquidated damages and not as a penalty, the sum of $10,000.00 (the “Liquidated Amount”)
per breach. The Liquidated Amount is fixed and agreed on by and between Righthaven and the
Defendants because of the impracticability and extreme difficulty of fixing and ascertaining the
true value of the damages which Righthaven will sustain by breach of the Confidentiality
Provision and the Cease and Desist Provision by the Defendants.

12. Subject to the terms and conditions of this Agreement, each Party shall use that
Party’s best efforts at that Party’s own expense to take, or cause to be taken, all action and to do,
or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to
consummate and make effective the transactions pursuant to and arising out of this Agreement.

13. Each Party covenants, warrants, and represents that each Party has had the
opportunity to seek legal counsel and/or is represented by counsel concerning the matters
resolved by this Agreement and this Agreement itself.

14. Each Party covenants, warrants, and represents that the Person executing this
Agreement on such Party’s behalf has authority to execute this Agreement and to bind such Party
to this Agreement.

15. No Party may assign such Party’s respective rights or delegate any of such Party’s
duties under this Agreement without the consent of the other Party, except to a Person which has
succeeded to substantially all the business and assets of the assignor and assumed in writing such
assignor’s obligations under this Agreement, and this Agreement shall be binding upon and inure
to the benefit of the Parties and the Parties’ respective Affiliates.
 16. No delay or failure to exercise any power or right herein shall constitute a waiver
thereof without a written expression of the waiver, signed by all Parties (a “Written Waiver”),
and no Written Waiver shall constitute a waiver of any power or right herein except the
particular power or right with respect to the particular event described in such Written Waiver.

17. This Agreement may be executed in counterpart copies, each of which shall be
deemed an original, and upon execution of such counterparts, all counterparts taken together
shall be construed as and shall constitute one and the same Agreement. A signature received by
electronic mail or facsimile transmission shall be effective as an original signature and shall be
sufficient to bind the signing Party.

18. In construing this Agreement or determining the rights of the Parties pursuant to
and arising out of this Agreement, no Party shall be deemed to have drafted or created this
Agreement or any portion of this Agreement.

19. The Parties hereby submit to the exclusive jurisdiction of the federal and state
courts located in the State of Nevada, County of Clark, for any actions, suits, or proceedings
asserting a breach of this Agreement only. The Parties hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or proceeding arising out of an
alleged breach of this Agreement, in the courts of the State of Nevada or of the United States of
America located in the State of Nevada, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in such court that any such action, suit, or proceeding
brought in such court has been brought in an inconvenient forum. This Agreement shall be
construed in accordance with the laws of the State of Nevada.

20. If any Party institutes a lawsuit alleging a breach of this Agreement, the losing
party in that lawsuit shall pay the fees and expenses, including reasonable attorneys’ fees, of the
prevailing party in that lawsuit.

21. This Agreement does not create a partnership, joint venture, or formal business
organization of any kind and no Party has the right to make any commitment of any kind for or
on behalf of the other Party.

22. Righthaven shall make any notice to the Defendants required pursuant to or
arising out of the terms of this Agreement in writing, via certified United States mail, to the
following address, unless otherwise indicated by the Defendants from time to time:

Brian Hill
413 N. 2nd Avenue
Mayodan, NC 27027

Roberta Ruth Hill

413 N. 2nd Avenue
Mayodan, NC 27027
The Defendants shall make any notice to Righthaven required pursuant to or arising out of the
terms of this Agreement in writing, via certified United States mail, to the following address,
unless otherwise indicated by Righthaven from time to time:

Righthaven LLC
Attn: Chief Administrative Officer
9960 West Cheyenne Avenue, Suite 210
Las Vegas, Nevada 89129

Any Party may at any time change the address for notices to such Party by providing a notice in
the manner set forth in this Section 22.

23. If any provision of this Agreement or the application thereof to any person or
circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this
Agreement and the application thereof shall not be affected and shall be enforceable to the fullest
extent permitted by Law. Without limiting the generality of the foregoing sentence, to the extent
that any provision of this Agreement is prohibited or ineffective under Law, this Agreement shall
be considered amended to the smallest degree possible in order to make the Agreement effective
under Law.

24. This Agreement contains, and is intended as, a complete statement of all terms of
the arrangements between the Parties with respect to the matters provided for herein, supersedes
any previous agreements and understandings between the Parties with respect to those matters,
and cannot be modified or terminated except by a subsequent agreement in writing signed by all
Parties.

25. The Agreement is a compromise of a disputed claim, and neither the payments
nor the releases contained herein are to be construed as admissions of liability on the part of
Righthaven or the Defendants.

In witness whereof, the Parties hereto duly execute this Agreement:

RIGHTHAVEN LLC

By:______________________________

Name: Steven A. Gibson

Title: Chief Executive Officer

Date:____________________________

BRIAN HILL

By:______________________________

Name:___________________________

Date:____________________________

ROBERTA RUTH HILL

By:______________________________

Name:___________________________

Date:____________________________
 SCHEDULE 1

DEFINITIONS

“Affiliate” shall mean, with respect to any Person, including, but not limited to, shareholders,
directors, officers, employees, attorneys, accountants, successors, heirs, assigns and licensees, as
well as any other Person either holding equity in, retained by, employed by, any Party.

“Agreement” shall mean the document entitled Release and Settlement Agreement.

“Business Day” shall mean any day, Monday through Friday, on which federally-chartered banks
are generally open for business in Clark County, Nevada.

“Case” shall have the meaning ascribed in Section 5.

“Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action, or
other claim of whatsoever nature.

“Comment(s)” shall have the meaning ascribed in Section 9.

“Content” shall mean all material, information, manuals, teaching manuals, creative works,
documents, matter, text, Software, data, graphics, computer-generated displays and interfaces,
images, photographs, and works of whatsoever nature, including, without limitation, all
compilations of the foregoing and all results and/or derivations of the expression of the
foregoing.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of any Person, or the power to veto major policy
decisions of any such Person, whether through the ownership of voting securities or otherwise.

“Defendants” shall have the meaning ascribed in the first paragraph of the Agreement.

“Defendants’ Release” shall have the meaning ascribed in Section 6.

“Develop” shall mean to develop, conceive, discover, reduce to practice, create, or otherwise
arise out of a Person’s efforts in any manner whatsoever and through any means whether now
known or hereafter developed.

“Disclose” shall mean to disclose, disseminate, transmit, Publish, distribute, make available,
convey, or otherwise communicate in any manner whatsoever.

“Disclosure” shall mean the effect that results when something is Disclosed.

“Effective Date” shall have the meaning ascribed in the opening paragraph.
“Encumber” shall mean to impose a security interest, pledge, hypothecation, or other
encumbrance of whatsoever nature.

“Exploit” shall mean to use, make, sell, or otherwise exploit in any manner whatsoever, through
any means now known or hereafter Developed.

“Intellectual Property” shall mean all foreign, federal, state, and common-law trademarks,
service marks, domain names, Internet path names and addresses of whatsoever nature, trade
dress, copyrights, know-how, show-how, patents, inventions (whether or not patentable), mask
works, proprietary data, customer lists, strategic plans, financial data, trade secrets, all other
intangible assets of whatsoever nature, and all applications for registration and/or issuance with
respect to all of the foregoing, whether or not any of the foregoing is registrable or patentable,
including, with respect to all of the foregoing: (a) all goodwill associated with any of the
foregoing; (b) all patents, continuations, continuations-in-part, divisionals, reissues, and
extensions; and (c) all moral rights associated with any of the foregoing.

“Law” shall mean, collectively, all federal, state and local laws, statutes, codes, ordinances,
orders, decrees, rulings, rules and regulations, including judicial opinions.

“Losses” shall mean any costs, expenses, fees (including, without limitation, attorneys’,
accountants’, investigators’, witnesses’, and professionals’ fees), charges, expenditures,
liabilities, damages, and other losses of whatsoever nature.

“Media” shall mean print, document-based medium, television, facsimile, telex, telephony, radio,
satellite, cable, wire, computer-based network, network, magnetic means, optical means,
electronic means, Internet, intranet, Software, compact and laser disc, digital video displays,
video cassettes, and multi-media and any other method (now known or hereafter Developed) for
the publication, retention, conveyance, possession or holding of Content.

“Party” shall mean any party to this Agreement, individually.

“Parties” shall mean all parties to this Agreement, collectively.

“Payment Date” shall have the meaning ascribed in Section 7.

“Person” shall mean any individual, corporation, partnership, limited partnership, limited-
liability partnership, limited-liability company, trust, association, organization, or any form of
entity whatsoever.

“Publish” shall mean the subject of publication within the meaning of the Copyright Act, 17
U.S.C. §101.

“Righthaven” shall mean Righthaven LLC, a Nevada limited-liability company, with a business
address of 9960 West Cheyenne Avenue, Suite 210, Las Vegas, Nevada 89129.

“Righthaven Copyright” shall have the meaning ascribed in Section 2.

“Righthaven Owned Copyrights” shall mean copyrights owned by Righthaven LLC.

“Rights” shall mean all rights, title, and interest of any kind.

“Schedule” shall mean any enumerated schedule of this Agreement.

“Section” shall mean any enumerated section of this Agreement.

“Settlement Payment” shall have the meaning ascribed in Section 3.

“Software” shall mean source code, object code, executable code, or other program or code
format whatsoever, whether now known or hereafter Developed.

“Written Waiver” shall have the meaning ascribed in Section 13.

 SCHEDULE 2

THE RIGHTHAVEN COPYRIGHT

1. TSA Agent performs enhanced pat-downs. Originally published on November 18, 2010,
The Denver Post.
 SCHEDULE 3

WIRING INSTRUCTIONS

For Domestic Wires:

Bank: Bank of Nevada
Account Name: Righthaven LLC
Routing Number: 122401778
Account Number: 7501426651
 SCHEDULE 4

PRESS RELEASE

FEDERAL COPYRIGHT INFRINGEMENT CASE ENDS IN APOLOGIES BY DEFENDANT

LAS VEGAS, NV - A federal copyright infringement law suit in Colorado involving a North
Carolina blogger named Brian Hill (“Hill”), filed by the Las Vegas-based company Righthaven
LLC (“Righthaven”) has been resolved out of Court. Hill’s attorney in the copyright
infringement action, David Kerr, acknowledges that the parties have amicably resolved the
dispute after cooperative and diligent efforts by both sides.

Hill and his counsel, Kerr, admitted that their past accusations about Righthaven’s business
practices were not well-founded based upon the professional behavior exhibited during
settlement negotiations between the parties. Additionally, Hill and his mother, Ruth Hill, have
admitted that they inappropriately mischaracterized certain facts and made certain inaccurate
statements on both the World Wide Web and to other media sources regarding this matter prior
engaging in substantive communications, either individually or through their counsel, with
Righthaven. Stated by his counsel in public filings associated with the lawsuit, “Hill apparently
has a mental disorder,” which may have impacted his reaction to the action and the
misstatements previously made by Hill.

Hill has expressed his regret for making certain commentary regarding Righthaven, and he has
apologized to the company for doing so. Kerr, on behalf of Hill, stated that “Righthaven was
well within their rights to pursue the copyright infringement claim asserted and, as alleged, it
would constitute a violation of federal law.”

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