• by Wendy Davis  @wendyndavis, February 24, 2011

A national bloggers organization is urging a judge to reject the proposition that a Web user who allegedly reposted a single article from the Las Vegas Review-Journal should now be required to pay damages of $150,000.

That figure is "so astronomical and disproportionate" that it's unconstitutional, the Media Bloggers Association argues in a proposed friend-of-the-court brief. The organization filed the brief in an attempt to weigh in on a lawsuit brought by copyright enforcement outfit Righthaven against East Greenbush, NY-based blogger Bill Hyatt. As with most of the other 250 cases filed by Righthaven in the last year, the lawsuit alleges that Hyatt infringed copyright by reposting a Review-Journal article to his blog.

Righthaven, as is typical in its lawsuits, obtained the copyright to the piece -- an article about two TV shows on the FX network -- from the Review-Journal approximately one month after Hyatt allegedly reposted the article. Hyatt defaulted in the case by failing to appear in court and defend himself, but the judge still has to decide what type of damages are appropriate.

Earlier this month, Righthaven filed a motion asking U.S. District Court Judge Kent Dawson to order Hyatt to pay $150,000 in damages. The copyright statute provides for damage awards between $750 and $150,000 per work infringed.

The Media Bloggers Association, represented by first amendment lawyer Marc Randazza, opposes Righthaven's request. "A constitutionally bizarre award in this case, such as that sought by the Righthaven enterprise, will create a chilling effect ... thus reducing the amount of discourse on matters of public concern," the group argues.

In its legal papers, the bloggers group characterizes Righthaven's business model as a "get rich quick scheme" that is so "unseemly and questionable" that the company should not receive even the minimum damages of $750. "Righthaven is not a content producer trying to preserve its relevant market from the unceasing raids of content pirates, but a dedicated litigation house that acquires rights from other entities solely to sue essentially defenseless 'infringers' for their supposed infringement," the group argues.

Righthaven typically sues bloggers without first requesting that they remove the allegedly infringing posts. The company also generally requests $150,000 damage awards when it files suit, but has ended up settling cases for far smaller amounts. Two of the public settlements have been for four-figure sums.

Many of the small bloggers sued by Righthaven have said they didn't realize they were infringing the newspaper's copyright because they credited the paper and linked back to the original story. Some also have said they thought they were making fair use of the material.

One federal judge recently sided with a blogger and dismissed a copyright infringement lawsuit by Righthaven. In that case, the blogger allegedly reposted eight sentences of a 30-sentence Las Vegas Review-Journal piece. Righthaven is now appealing that ruling.

The Media Bloggers Association is attempting to get involved in the lawsuit against Hyatt on the theory that its mission -- advancing citizen journalism -- will be affected by the outcome of the case. The organization was founded in 2004 by bloggers, including online journalism guru Jeff Jarvis, John Amato of Crooks and Liars and Glenn Reynolds of Instapundit.

Judges have discretion about whether to permit friend-of-the-court briefs, and it's not yet clear whether Dawson will allow the bloggers group to participate in the case. But accepting an outside brief could help the judge sort out the legal issues in this case, given that Hyatt didn't appear in court, says Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "This is an excellent situation for some kind of intervention," says Goldman, who has criticized Righthaven for its tactics. "Our judicial system relies on adversary proceedings and when you have a default, you don't have an adversary proceeding."