MJR ltr to MSK re Hoehn Amici _amended_ by mmasnick

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									                                                                                            Correspondence from:
                                                                                            Marc J. Randazza, Esq.

                                                                                            Reply to Las Vegas Office
                                                                                            via Email or Fax
Licensed to practice in
California                                                                                  December 4, 2011

Licensed to practice in   Via Email Only
Ontario, Canada
U.S. Tax Court

JASON A. FISCHER          Matt Williams
Licensed to practice in
                          Mitchell Silberberg & Knupp LLP
U.S. Patent Office
                          1818 N Street NW
                          Washington, DC 20036
Licensed to practice in
                                 Re: Amici Participation in Righthaven LLC v. Hoehn, 11-16751
                          (corrected – replaces Correspondence of Decmber 3, 2011)
Licensed to practice in
                          Dear Matt:
Licensed to practice in
Arizona                   This letter should replace my correspondence of December 3, 2011 in which I
                          mistakenly identified your client as the MPAA. You corrected me via email and
                          informed me that it is the Recording Industry Association of America (RIAA), not
                          the MPAA.
                          I have carefully considered the positions of your clients, the RIAA and the
Las Vegas
6525 W. Warm Springs Rd
                          Association of American Publishers (AAP), in seeking leave to participate as
Suite 100                 amici in the above-titled appeal.
Las Vegas, NV 89118
Tel: 888.667.1113
Fax: 305.437.7662         As we discussed, I do not believe that their participation in the case is necessary
                          or proper, nor do I believe that you have been entirely forthcoming with me with
2 S. Biscayne Boulevard
                          respect to their posture. You stated that your clients intend to pay you to file a
Suite Number 2600         “neutral” brief, which would be “not in support of either party.” Once you
Miami, FL 33131           elaborated, you shared that your clients intend to argue that Righthaven’s lack of
Tel: 888.667.1113
Fax: 305.397.2772         standing precluded the District of Nevada from making a finding of fair use. This
                          is precisely the sum and substance of Righthaven’s argument, and thus I consider
1212 East Osborn
                          any claims of this being “neutral” or “not in support of either party,” to be
Suite 104                 untruthful. I don’t like being bullshitted. I especially don’t like being bullshitted
Phoenix, AZ 85014         on behalf of someone trying to do Righthaven’s bidding.
Tel: 888.667.1113
Fax: 305.437.7662
                          We would oppose your clients participating in the case to take up arms for
3230 Yonge Street         Righthaven because it failed to take the appeal – and preceding district court
Suite Number 200          proceedings – seriously. Numerous courts have taken a dim view of this species
Toronto, ON M4N 3P6
Tel: 888.667.1113
                          of amicus participation; Richard Posner characterized such conduct as “an abuse”
Fax: 416.342.1761         in Ryan v. FTC, 125 F.3d 1062, 1063 (7th Cir. 1997). See also American College
Ltr. Re Hoehn Appeal
December 3, 2011
Page 2 of 3

     of Obstetricians and Gynecologists, Pennsylvania Section v. Thornburgh, 699 F.2d 644 (3d Cir. 1983).
     I, too, would characterize the proposed amici participation as such.

     Additionally, participation in Righthaven proceedings is unlikely to be money well spent; all of
     Righthaven’s pending appeals are likely to be mooted. At present, Righthaven has three judgment
     creditors seeking in excess of $215,000.00 from the company. See Righthaven v. Wolf, Case No. 1:11-
     cv-00830 (D. Colo.); Righthaven v. Hoehn, Case No. 2:11-cv-00050 (D. Nev.); Righthaven v. DiBiase,
     Case No. 2:10-cv-01343 (D. Nev.). As counsel to Mr. Hoehn, I will reveal that when Righthaven’s
     operating account was frozen on November 2, 2011, it contained less than one thousand dollars in it.

     In order to fulfill his judgment, Mr. Hoehn has moved the District of Nevada to appoint a receiver to
     sell Righthaven’s intellectual property at auction, so that his writ of execution for more than $63,000
     may be partially satisfied. This occurred because Righthaven refused to post a bond for a mere
     $34,045.50. Righthaven was denied relief by both the district court and the Ninth Circuit when it
     sought to stay execution. See Hoehn, Case No. 11-16995 (9th Cir. 2011). Righthaven has similarly
     failed to post supersedeas bonds in DiBiase and Wolf. As we are counsel to Mr. Wolf as well, we can
     assure you that similar efforts will unfold in the District of Colorado. Therefore, if your clients pay
     you to write a brief, it is a virtual certainty that it will be wasted effort – the appeal is unlikely to ever
     be heard.

     Righthaven will lose control of its intellectual property as soon as it is appointed to the receiver. Since
     Righthaven failed to timely oppose the motion to do so, it has conceded to it under District of Nevada
     Local Rule 7.2. There is little question now as to whether this transfer of rights will occur – but
     merely when it will happen. The receiver will auction off Righthaven’s intellectual property assets,
     which may be purchased by the defendants themselves. Given the fact that the defendants likely
     assign more value to them than any purchaser, it is virtually certain that the defendants will purchase
     them, thus acquiring the very rights they have been sued over. This will deny Righthaven any ability
     to claim standing on appeal. Thus, all the money that your clients pay you to write an amicus brief
     may as well be thrown in the trash. I realize that they have enough money to throw some around on
     wasteful projects, but I question whether they will allocate resources in this manner if they are
     provided with all the facts.

     In addition to the simple futility of participation, I question whether your clients public relations
     advisors have spoken to them about this with as much aplomb as you have. Wayne Hoehn is a highly
     decorated Vietnam veteran who, while handing a series of humiliating defeats to Righthaven, has
     expended much of his savings in this battle. He has further become a symbol of resistance to the
     abusive litigation tactics engaged in by Righthaven. While these facts are not defenses to copyright
     infringement, they are very relevant to public perception – and all signs point toward letting
     Righthaven fail once more and further embarrass itself without risking your clients’ reputations in the

     If you have actually managed to convince your clients that it is a good idea for them to spend tens
     thousands of dollars (or more) in this case for the sole eventual purpose of merely costing Mr. Hoehn
     money, you can rest assured that it will be a public relations negative for them, in no small part due to
     Righthaven’s poor handling of this case, along with hundreds of others, from its inception to present. I
     strongly suggest that you consider recommending a different “make-work” project for your clients. I
Ltr. Re Hoehn Appeal
December 3, 2011
Page 3 of 3

     understand that in this day and age of biglaw layoffs, it is a constant battle to make sure that your
     existence is justified on the firm’s billing ledgers. This is the wrong case with which to round out your
     sheet. I can assure you of that. Your clients will waste money and all the money will buy them is the
     opportunity to look like idiots.

     On the other hand, if your clients truly do wish to throw money into a black hole of Righthaven’s
     making, Mr. Hoehn may be willing to entertain simply stipulating to the appeal. Your clients could
     invest less money by paying the judgment that Righthaven has declined to pay. If your clients wish to
     do that, they would a) achieve the goal you seem to wish to achieve – vacating a fair use win, and b)
     they would not take the public relations hit of attacking a decorated veteran on behalf of the nation’s
     pre-eminent unethical failure.

     Please present this letter and its offer to your clients. We cannot presume to guess how they will view
     the offer, but we can venture to guess that they can think of much better ways to waste whatever you
     quoted them to write an amicus brief. This is especially so considering that the Ninth Circuit may not
     allow them to participate over our objection. Even if the Ninth does not find favor with our objection,
     the ultimate position that you claim your clients wish to put forth will never be heard. The appeal will
     be moot within a few months – thus your clients will achieve nothing for their money except the
     satisfaction of knowing that they paid a legal bill for nothing, with the collateral detriment of a much-
     deserved public relations hit. In my experience, clients do not appreciate that kind of thing.

                                                        Best regards,

                                                        Marc. J. Randazza

   cc:    Jason A. Fischer, Esq.
          J. Malcolm DeVoy IV, Esq.
          Wayne Hoehn

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