Embattled copyright lawyer uses DMCA to remove article about himself

Well-known copyright lawyer Marc Randazza used the Digital Millennium Copyright Act (DMCA) to delete an online article about a dispute between his former employer and himself.

Randazza says he sent the notice on behalf of Xbiz.com, a porn-industry news site that he represents. Last July, Xbiz (NSFW) published an article about Randazza's legal dispute with a former employer, gay porn publisher Liberty Media. The brouhaha with Liberty Media was also featured here at Ars in a story titled "Bribery, gay porn, and copyright trolls: the rise and fall of lawyer Marc Randazza." It describes how an arbitrator found that Randazza—the Nevada lawyer once championed for helping bring down copyright troll Righthaven—solicited a bribe in a bid to settle a copyright case for Liberty. Randazza soon found himself under investigation by the State Bar of Nevada.

A blog called Fight Copyright Trolls (FCT) mentioned the arbitration award as well. The blog's owner, who goes by "SJD," also noticed that the Xbiz article had been changed—but he had kept an original copy, saved and published as a PDF file on his site. On Feb. 1 nearly seven months after the FCT blog published the Xbiz article and related commentary, SJD was on the receiving end of Randazza's copyright takedown request. The FCT blog had re-published the entire Xbiz story, and Randazza claimed that made it a piratical, infringing copy.

It was Randazza himself who was instrumental in proving that even reposting an entire article can be fair use in one of the cases where he bested Righthaven. Nevertheless, Randazza sent the DMCA notice about the FCT blog to Automattic, which owns the WordPress blogging platform. Randazza was demanding that an unflattering article about himself be wiped from the Internet—in the name of his client, Xbiz, which continues to host an almost-identical version.

The DMCA legal notice didn't lead to quick compliance, however. Instead, Randazza got into a back-and-forth about copyright law with Wordpress' "Community Guardians."

“So what's the verdict?”

"It looks like Rhett Pardon is the author of the article infringed upon, and you’re actually the subject of the article," a WordPress Community Guardian, identified in e-mails as Sal P., told Randazza. "Do you work for XBiz, and are you authorized to represent them in this way?"

Sal reminded Randazza that "all information you furnish in connection with DMCA notices (including your authorization to act on behalf of the copyright holder) is submitted under penalty of perjury."

"I may be the subject of the article, but I am also legal counsel to Xbiz," Randazza wrote in response. "Rhett Pardon is a pen name for the author, but Adnet Media d/b/a Xbiz is the copyright owner. I submit this information under penalty of perjury. If you would feel more comfortable with a declaration from the actual writer, I will get that for you."

It wasn't over yet. The next day, a WordPress employee identified as Leroy responded, asking Randazza if he had considered fair use before sending the takedown request. Leroy had noticed that there was a key difference between the current article up on Xbiz and the original Xbiz article preserved by SJD.

"As you may know, the DMCA is frequently abused by complainants who are not authorized to act on behalf of a copyright holder, but nevertheless seek to remove certain materials from the Internet on copyright grounds," Leroy wrote. "We’re very vigilant about this issue."

He continued:

While the blog post you cite, “Arbitrator: Marc Randazza must pay $600K+ for ‘clear and serious breaches of fiduciary duty’ against his former client,”... does include an article from your client’s website, it appears that the article was included for the purpose of commentary by the blogger. In particular, the article includes and makes reference to an earlier copy of your client’s article (later revised on your client’s website), and notes/comments on the deletion of two paragraphs from that article. At first glance, this seems like a colorable instance of fair use by the blogger; a copy of the earlier version of the article is essential to the blogger’s commentary.

If fair use is applicable here, the blogger’s use of your article in this context would not constitute infringement, regardless of authorization (or not) by the copyright holder. Did you consider this fair use defense when submitting your notice? Do you agree or disagree with this assessment? Would be interested to know your thoughts before proceeding further—particularly given your firm’s experience defending small publishers against similar takedown requests (which we very much applaud!).

"My client’s position," Randazza responded minutes later, "is that this infringes upon their copyright and that it is not fair use."

About two hours later, Randazza wrote another note to Leroy. "So what’s the verdict? Do you want to have a phone call about it? You can feel free to record it, if you announce that in advance. I just think that dealing with someone with just a first name, with multi-hour delays in between messages, is not constructive."

Later that night, Randazza changed his mind without warning. "Making this one easy," he wrote. "My client has authorized me to withdraw the DMCA request."

(Ars was given a copy of the e-mail correspondence (PDF) between Randazza and WordPress community guardians.)

Missing paragraphs

In telephone interview with Ars, Randazza said his request to remove the article about him was simply one of "many DMCA notices" he had sent on behalf of Xbiz.

"There are hundreds of infringements that we deal with," Randazza said. "When this one was brought to my attention, and there was some question as to my potential objectivity on it, I asked my client to allow me to withdraw it and refer it to another lawyer. I don't know who’s going to handle it going forward."

The Xbiz article was written by "Rhett Pardon," a pseudonym used by Don Parret, Xbiz's executive editorial director. Phone and e-mail requests for comment sent to Parret, Xbiz publisher Alec Helmy, and Xbiz's press relations department received no response. Randazza declined to say who at Xbiz authorized the DMCA takedown notice.

As for SJD, the pseudonymous author of the Fight Copyright Trolls blog, he views the Randazza DMCA notice as an attempt to erase history.

"I felt what was going on was censorship," SJD said in an telephone interview with Ars. "The notion that I drew page views from them is so ridiculous it doesn’t pass the smell test."

The Xbiz article discusses the same Randazza employment dispute that Ars reported on in November. Liberty Media, called by its brand name Corbin Fisher in the Xbiz piece, won an award against Randazza of more than $600,000 through binding arbitration. The arbitrator found that Randazza had improperly worked for Liberty competitors and had "successfully concluded negotiations for a bribe in the amount of $75,000." Court proceedings to finalize the award are on hold due to Randazza's declaration of bankruptcy last year. (The arbitrator did not conclude, however, that Randazza actually received the $75,000.)

As WordPress' Leroy saw, however, there's a critical difference between the article currently up at Xbiz.com and the original, preserved one on the FCT blog. Even though the DMCA notice was dropped, SJD has removed the full PDF and updated the post with a screenshot of two paragraphs Xbiz deleted from the story it originally published.

The two paragraphs describe a proposal by Randazza's attorney to settle Randazza's employment dispute with Liberty Media by offering, in part, $20,000 per bar license that Randazza is able to keep from having suspended or revoked. Liberty COO Brian Dunlap had described the offer as an unethical "bounty on his bar licenses" intended to encourage Liberty not to cooperate with state bar investigators.

The deleted paragraphs read:

“[P]art of his settlement offer was to pay us $20,000 per bar license he is able to keep from having suspended/disbarred,” [Liberty Media COO Brian] Dunlap said. “In other words, he offered us a bounty on his bar licenses — we’d get more of the award if we did not cooperate with bar investigators or send follow–up complaints."

“In his attorneys' own words, they said they expect suspension/disbarment in [Florida], so we could expect $80,000 if none of the other four bars took action. We refused this offer because it was insulting, it was unethical — an attorney cannot offer such a bounty on their license — and because we know most all bars use reciprocal discipline — if one suspends/disbars, the others usually do as well."

The original e-mail (PDF), which was provided to Ars, shows that the settlement offer included at least $200,000 in addition to the $20,000 per non-suspended bar license. The offer was made in June, shortly after Liberty had received the favorable arbitration decision. Liberty rejected the offer.

Randazza didn't respond to Ars' questions regarding the deleted paragraphs. Asked if he was the subject of any bar investigations, he said, "None that have not been closed."