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12/05/2011

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Correspondence from: Marc J. Randazza, Esq. mjr@randazza.

com Reply to Las Vegas Office via Email or Fax

MARC J. RANDAZZA
Licensed to practice in Massachusetts California Arizona Florida

December 4, 2011 Via Email Only mxw@msk.com Matt Williams Mitchell Silberberg & Knupp LLP 1818 N Street NW Washington, DC 20036 Re: Amici Participation in Righthaven LLC v. Hoehn, 11-16751 (corrected – replaces Correspondence of Decmber 3, 2011) Dear Matt: 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 Association of American Publishers (AAP), in seeking leave to participate as amici in the above-titled appeal. 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 respect to their posture. You stated that your clients intend to pay you to file a “neutral” brief, which would be “not in support of either party.” Once you elaborated, you shared that your clients intend to argue that Righthaven’s lack of 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 any claims of this being “neutral” or “not in support of either party,” to be untruthful. I don’t like being bullshitted. I especially don’t like being bullshitted on behalf of someone trying to do Righthaven’s bidding. We would oppose your clients participating in the case to take up arms for Righthaven because it failed to take the appeal – and preceding district court proceedings – seriously. Numerous courts have taken a dim view of this species of amicus participation; Richard Posner characterized such conduct as “an abuse” in Ryan v. FTC, 125 F.3d 1062, 1063 (7th Cir. 1997). See also American College

JONATHANE M. RICCI
Licensed to practice in Michigan Ontario, Canada U.S. Tax Court

JASON A. FISCHER
Licensed to practice in Florida California U.S. Patent Office

J. MALCOLM DEVOY
Licensed to practice in Wisconsin Nevada

ALEX COSTOPOLOUS
Licensed to practice in Florida

BETH A. HUTCHENS
Licensed to practice in Arizona

www.randazza.com Las Vegas 6525 W. Warm Springs Rd Suite 100 Las Vegas, NV 89118 Tel: 888.667.1113 Fax: 305.437.7662 Miami 2 S. Biscayne Boulevard Suite Number 2600 Miami, FL 33131 Tel: 888.667.1113 Fax: 305.397.2772 Phoenix 1212 East Osborn Suite 104 Phoenix, AZ 85014 Tel: 888.667.1113 Fax: 305.437.7662 Toronto 3230 Yonge Street Suite Number 200 Toronto, ON M4N 3P6 Tel: 888.667.1113 Fax: 416.342.1761

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. 1:11cv-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 process. 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 muchdeserved 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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