Sixth judge rules against Righthaven

Righthaven LLC of Las Vegas struck out again in court Friday when a sixth judge ruled it lacked standing to file copyright infringement lawsuits.

Robert C. Jones, chief U.S. District Court judge for Nevada, dismissed Righthaven’s copyright infringement lawsuit against news aggregator NewsBlaze LLC of Folsom, Calif.

Righthaven is a company — not a law firm — that in March 2010 launched a litigation campaign unprecedented for the newspaper industry.

Through July of this year, it filed 275 no-warning lawsuits claiming websites, bloggers and message-board users had infringed on copyrights by posting material from the Las Vegas Review-Journal and the Denver Post without authorization.

Righthaven claimed in the lawsuits that the newspapers had assigned the copyrights at issue to Righthaven.

The lawsuits were unusual for the newspaper industry, which in the past had dealt with copyright infringers by asking or demanding that infringed material be removed and/or be replaced with links to the source newspaper.

Righthaven says the suits were needed to deter rampant online copyright infringement of material from newspapers, but critics said the suits were frivolous and part of a money-making scheme involving dubious legal claims and efforts to obtain settlements through shake-down legal tactics.

After collecting what are believed to be hundreds of thousands of dollars in lawsuit settlement revenue, Righthaven’s lawsuit campaign stumbled beginning this summer.

Before Friday’s ruling by Jones, five other judges in Nevada and Colorado ruled Righthaven lacked standing to sue because, despite its claims it owned the copyrights it was suing over, the newspapers actually maintained control over the content Righthaven was suing over. A federal magistrate judge in South Carolina is also threatening to recommend dismissal of Righthaven’s lone lawsuit in that state for the same reason.

Copyright infringement lawsuit plaintiffs must control the material they are suing over and must own more than the bare right to sue, the judges ruled. On top of those dismissals, three judges ruled defendants were protected by the fair use doctrine of copyright law in posting material from the Review-Journal without authorization.

Dismissal of the lawsuit against NewsBlaze over its alleged post of an R-J story was expected after an Oct. 21 hearing during which Jones wasn’t persuaded by a Righthaven attorney’s arguments that the suit should be allowed to proceed.

Righthaven has been arguing lately that it should be allowed to amend its suits over R-J material because its updated lawsuit contract with R-J owner Stephens Media LLC — called the Strategic Alliance Agreement (SAA) — gives it unqualified ownership of the material it sues over and therefore standing to sue.

But Jones, like other judges before him, wrote in his dismissal order that allowing Righthaven to amend its lawsuit in response to adverse court decisions would be improper.

“Although a court may allow parties to amend defective allegations of jurisdiction, the parties are not permitted to amend the facts themselves,” Jones wrote in his order.

“Courts in this district have found that the SAA does not confer Righthaven standing to sue for copyright infringement because the SAA deprives Righthaven of any of the rights normally associated with ownership of an exclusive right and only leaves Righthaven the bare right to sue,” Jones wrote in the order.

Jones’ order is not binding on the other Nevada federal judges handling Righthaven cases and Righthaven continues to hope that either Judge Larry Hicks or Judge Gloria Navarro will uphold its right to sue under the amended SAA.

In Colorado, Righthaven won’t be obtaining new copyrights for lawsuit purposes from the Denver Post after the Post’s owner didn’t renew its copyright protection contract with Righthaven after a legal blunder and other public relations debacles over the Post suits. The legal blunder involved Righthaven suing a reporter for posting online a Righthaven court document — a post clearly protected by fair use. Righthaven promptly dropped that suit after admitting its mistake.

In Friday’s order, Jones didn’t address a request by attorneys for NewsBlaze at Randazza Legal Group of Las Vegas that a Righthaven attorney be sanctioned for continuing to hopelessly litigate Righthaven’s cases even after judges made clear that the company lacks standing to sue.

The sanctions motion asked that the attorney, Shawn Mangano of Las Vegas, be required to pay some $11,925 in NewsBlaze legal fees racked up in defending the lawsuit.

Mangano has called the sanctions motion “unprofessional” and says it was aimed at silencing “an adversary’s zealous prosecution of claims in litigation.”

Righthaven has been appealing the dismissals of many of its suits and is likely to appeal Jones’ ruling, especially if Jones awards NewsBlaze its attorney’s fees.

Separately, an attorney at Randazza Legal Group said Saturday he couldn’t say anything about whether another Righthaven defendant — Wayne Hoehn — had achieved any success in seizing Righthaven assets now that the federal court has ordered the U.S. Marshals Service to seize $63,720 in Righthaven assets. The asset-seizure order came after Righthaven refused to — or couldn’t — pay Hoehn’s legal fees after a Righthaven lawsuit against Hoehn was dismissed on standing and fair use grounds.

The $63,720 owed to Hoehn is just the tip of the iceberg for Righthaven when it comes to having to pay prevailing defendants’ legal fees.

Righthaven has also been ordered to pay $119,488 in legal fees and costs to prevailing defendant Thomas DiBiase and a much larger fee award is likely in Righthaven’s failed lawsuit against the Democratic Underground.

On top of those cases, attorneys — including some at Randazza Legal Group — are demanding $33,148 in costs and fees for prevailing Righthaven/Denver Post lawsuit defendant Leland Wolf. Senior U.S. District Judge John L. Kane in Denver has already ruled Righthaven must pay Wolf’s fees — the only question is how much of the $33,148 requested he will actually award Wolf.

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  1. Chunky says:

    Just when he was thinking it would be a Righthaven news free weekend, we get more good news via Steve Green!

    That's what Chunky thinks!

  2. Here we go again - "no warning lawsuits..." This is completely and utterly 100% irrelevant. The US Copyright Act does NOT require that the petitioning party give any warning. The defendants are not due ANY warning. I am not sticking up for Righthaven - I hate what they are doing and am glad to see them get their hat handed to them - but the fact that they file the suits without warning is completely meaningless. Almost ALL Copyright infringement suits - including those NOT filed by Righthaven come with no warning. PLEASE stop buying into this meme that the warning or lack thereof matters. It does not. Read the statutes. It's very plain and easy to understand. No warning required. Next.

  3. Scott

    I think that has been well covered that the law does not require warnings or take-down notices however failure to do so clearly hurt Righthaven cases in front of judges.

    When no effort is made to resolve or mitigate a dispute outside of a law-suit first it is rightfully seen by judges as an abuse of the system.

    Take-down notices are important because most people will comply and if they do not comply it strengthens your case if it does go to court.

    Righthaven saga has shown the folly in suing first and asking questions later.

  4. Scott,
    While the 'no warning' issue is not a violation of the statute, this does not mean that it is irrelevant. It is illegal to perpetrate a scheme whereby someone obtains a copyright from the holder for the sole purpose of suing a copyright violator.

    The fact that Righthaven filed 275 lawsuits without warning or takedown notice is evidence that goes to the intent and motive of Righthaven: Obtain copyrights for the sole purpose of suing violators.

  5. Takedown notices are not required to sue for Copyright infringement. Period. I am not talking about Righthaven's scheme. I have already denounced it. If they had issued notice of intent to sue three days before filing then their scheme would be no less a scheme. There's just no reason to bring it up. There's no requirement for me or anyone else to attempt to resolve or mitigate a dispute before filing a claim of infringement. I have filed and won without such attempts or notice. I don't have to negotiate with people who are ripping me off. The whole conversation is such a waste of time. The reporter could use that space to focus on any number of substantive issues. My two cents.

  6. There was one case that was blatant copyright infringement, that involving lasvegasnewspapers.com. That website was part of a large number of websites that used an autoblog utility for Wordpress that re-published every article that showed up on an RSS feed. The site was commercial, soliciting advertising.

    The site, and several of the sister sites, were taken down after the story broke, presumably as a result of the lawsuit.

    In that particular instance, it could be argued that resorting to legal recourse first was acceptable. But in most of the others, especially those involving the non-profits, it would better serve the copyright law and the online community in general to have sent a take-down notice first.

    I submit that because the court seems to have been repulsed by Righthaven's tactics there have been rulings that have significantly weakened copyright protection for everyone else.