Righthaven faces new challenges to copyright suits

Las Vegas newspaper copyright enforcement company Righthaven LLC’s standing to file lawsuits is being challenged again, this time in Colorado.

Righthaven since March 2010 has filed 274 lawsuits alleging copyright infringement against website operators, bloggers and message board posters. It sues over Las Vegas Review-Journal and Denver Post material.

Its standing to sue is under attack in several cases and U.S. District Judge James Mahan in Las Vegas has said that under its lawsuit contract with the Review-Journal, Righthaven does not appear to have standing to sue. Mahan has rescheduled until next month a hearing on that issue.

Defense attorneys in some of the Review-Journal cases say the lawsuits are based on "sham’’ copyright assignments and Righthaven is merely acting as the agent of Review-Journal owner Stephens Media LLC. But Righthaven insists it owns the copyrights at issue, giving it the right to sue.

The latest challenge to Righthaven’s right to sue was made this week in federal court in Denver by attorneys for defendant OSM Media LLC, which owns the website pajamasmedia.com

OSM was sued after a Denver Post TSA pat-down photo was displayed on its website along with commentary by conservative Pajamas Media blogger Bryan Preston that "this image is fast becoming the symbol of the new `Don’t touch my junk’ movement.’’

In answering the lawsuit this week, OSM attorneys argued:

— Righthaven’s claims are barred by the doctrine of fair use -- an argument judges agreed with in two Review-Journal cases

— Righthaven’s claim is barred by the First Amendment

— Righthaven lacks standing to assert infringement claims and "the Denver Post and not plaintiff is the real party in interest.’’

— "Plaintiff’s unclean hands bar it from seeking equitable relief’’ and Righthaven’s failure to provide notice of the alleged infringement before suing "bars it from seeking equitable relief.’’

OSM is represented in the litigation by attorneys Marc Flink and Raj Chohan of the Denver law firm Baker & Hostetler LLP.

In another Righthaven case over the Denver Post photo, attorneys for Ran Decisions Inc., owner of the site boardingarea.com, responded that "all or part of the claims … are barred by the conduct of plaintiff’’ along with unclean hands, fair use, the First Amendment, copyright misuse and implied license, among other things.

The "implied license’’ argument involves claims that because the Denver Post encouraged online readers to share its material, they can’t be sued for doing just that. Righthaven has disputed that argument in Review-Journal cases.

Ran Decisions is represented by Colorado Springs, Colo., attorneys Scott Johnson and Matthew Niznik of the law firm Sparks Willson Borges Brandt & Johnson P.C.

Righthaven has not yet responded to these latest filings in federal court in Denver.

Righthaven’s attorney in Charleston, S.C., in the meantime, has filed papers disputing claims Righthaven hasn’t shown it has standing to sue South Carolina blogger Dana Eiser over a Denver Post column by Mike Rosen called "A letter to the Tea Partyers.’’

Attorney Edward Fenno noted that in its lawsuit against Eiser, Righthaven had asserted: "Righthaven obtained ownership of the copyright in and to the work (column) through a valid and enforceable assignment from the original owner of the rights in and to the work. The assignment granted Righthaven full ownership in and to the copyright to the work, as well as specifically assigning any and all rights to seek redress for past, present and future infringements, both accrued and unaccrued, in and to the work.’’

Righthaven’s lawsuit contract with the Denver Post has not yet been made public, but it appears to be similar to the Stephens Media contract in that Righthaven licenses back to the Post rights to use the material covered by copyrights.

Also, Righthaven defendant Tony Carl Loosle of Logan, Utah, asked U.S. District Judge Kent Dawson in Las Vegas last week to put his case over Review-Journal stories on hold until Mahan rules on the standing issue.

Righthaven and Dawson have not yet responded to that request.

Loosle complained Righthaven is engaging "in the common law sin of `champerty,’ which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit.’’

Righthaven complained in the April 21 lawsuit against Loosle and TCS Inc. that stories from the Review-Journal and the Las Vegas Sun had been posted without authorization on the website lasvegasinfonewspaper.com.

That site is no longer active. The Sun — a sister newspaper to VEGAS INC — is not a party to the litigation.

Loosle hasn’t yet responded to Righthaven’s allegation against him of "serial, unadulterated copyright infringement’’ including posting a Sun story about a Righthaven lawsuit.

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  1. You gotta love it when the fat cats find out what a tarbaby lawsuits can be. Nice to see the courts actually questioning the thresholds of Righthaven's scheme.

    "'If the law supposes that,' said Mr. Bumble,.... 'the law is a ass -- a idiot.'" -- Charles Dickens, "Oliver Twist"

  2. I would like to see one or more of the people counter suing demand the very copyright in question to be awarded as a penalty against Righthaven. This would put Righthaven in the awkward position of defending against something not explicitly written in statute while at the same time exert their own claim to the defendants domain, hardware, software etc.

  3. Loosle, in my opinion after visiting the site while it was still operational, would seem to have no defense other than finding a technical defect in the suit or a finding that champerty is in fact present and illegal.

    When the story about Loosle first came out I found that he appeared to operate many similar websites for other major cities including Los Angeles, Dallas, Chicago and New York City. Almost all of them appeared to be auto-blog sites that pulled in stories from the appropriate newspaper sites. Most of these sites are no longer available, or no longer contain any content.

    At the time I found the Las Vegas site in particular to be very interesting in that information about the ownership was readily available then and that the site had appeared to be intentionally setup to get the attention of Righthaven. I still think there is more than meets the eye to this case. (The domain registration info is now privacy protected like all of the other domains are.)

  4. I think pajamas is associated with right wing radio talker Hugh Hewitt, who is also an attorney.

  5. OSM (pajamamedia.com) should be a fun one to watch.

    OSM is a commercial site that publishes original commentary. They use thumbnails (usually 100x100 px) in the teasers and sometimes in the story. I spot-checked several articles and never found a full-size image.

    This one is a great "fair use" case since rulings have come down before on thumbnails, and the content is all original. I think it falls under "fair use" (but I am not a lawyer.)

    I really dislike how many of the defendants now are using a shotgun approach by listing every conceivable defense even when it should be obvious that they don't apply. This has already led to one poor decision in the case of OCI. What is happening is that Righthaven has offended the bench and judges are looking for any excuse to rule against them, even if it means creating bad precedent.

    On the surface, the agreement between RH and SM seems to describe a purchase of ownership by RH and a granting of license to use back to SM. But the wording surrounding that implies that RH has no control over what they purchased in any way, shape or form. They can't even grant a license to use or sell the ownership to any other party except SM. Even with the amended language it seems hard to say that RH really owns the copyright given the restrictions imposed by SM.

    To me, the agreement is nothing more, in part, than a means to establish a 50% contingency fee for RH engaging in what can be described as "digital ambulance chasing." The other part seems to be to allow SM (and possibly News Media) the chance to engage in some creative bookkeeping.

  6. boftx

    Creative book-keeping aka money laundering and balance sheet manipulation? It seems like Righthaven has an unlimited amount of cash. They aren't bringing in anywhere near enough to cover all of their expenses and yet they have enough cash to hire a very expensive New York lawyer as well as mount expensive appeals and fight counter-suits?

    My guess is that Stephens Media has given them a blank check that is enough to bring even a number of cases all the way to the Supreme Court if necessary to establish IP friendly precedences (which may be their ultimate plan) and Stephens Media can keep any losses and expenses off their balance sheet as to not effect stock prices.

  7. Ken,

    I wasn't implying anything illegal (money laundering) when I said "creative bookkeeping" but rather just that this arrangement allows SM to turn expenses into a revenue stream on the books.

  8. Boftx

    Yes I understand. Those were my own embellishments. To me the whole arrangement reeks.