Hard-fought copyright case closed against Righthaven
In what an attorney calls another ''nail in the coffin'' of Righthaven LLC, a Las Vegas judge has closed another of the copyright company’s noteworthy lawsuits.
Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and formerly of the Denver Post.
It filed 275 no-warning lawsuits against alleged infringers of material from those papers during the past two years, but lately appears to have given up its litigation campaign after a series of legal setbacks.
One of the latest defeats for Righthaven came Thursday in the company’s lawsuit against the Pahrump Life blog, which had been accused of copying without permission an R-J story about a private prison.
This case was among the most heavily-litigated of the Righthaven lawsuits because last year, U.S. District Judge James Mahan on his own initiative decided to make it a test case about whether Righthaven had standing to sue over copyrights it obtained from the R-J.
Mahan ordered Righthaven to show cause why the suit should not be dismissed, causing Righthaven to bring in star litigator Dale Cendali of the New York firm Kirkland & Ellis LLP to argue its case.
Groups and individuals influential in the copyright world also participated as friends of the court, arguing against Righthaven and its litigation-driven business model.
They included another star litigator, Laurence Pulgram of Fenwick & West LLP in San Francisco; the Democratic Underground, which had been sued by Righthaven in another case; the Media Bloggers Association, Citizens Against Litigation Abuse and UC Berkeley School of Law copyright scholar and professor Jason Schultz.
After a July hearing in which these experts argued about the Righthaven lawsuits, Mahan dismissed the lawsuit because under Righthaven’s lawsuit contract with the R-J, the R-J maintained control of the material Righthaven was suing over.
That meant Righthaven lacked standing to sue.
Even after Righthaven and the R-J amended their lawsuit contract beefing up Righthaven’s ownership rights, Mahan refused to allow Righthaven to file an amended lawsuit because that would be an impermissible effort to create standing.
The one issue that was outstanding until Thursday was whether Mahan’s dismissal was with or without prejudice. Mahan initially said it would be without prejudice, but later ordered the parties to file briefs on whether he should convert the dismissal to with-prejudice status.
Mahan, citing another recent ruling in the Democratic Underground case in which it was closed with prejudice, on Thursday found his dismissal was with prejudice.
''Having considered the supplemental briefing, this court finds that its dismissal of plaintiff
Righthaven LLC for lack of standing is a dismissal on the merits. Accordingly, the complaint is
dismissed with prejudice,'' Mahan wrote in Thursday’s order.
Even with Righthaven now acting as if it’s on its death bed, the ruling represented a hard-fought and potentially precedent-setting victory for the groups fighting Righthaven.
''This is another nail in the Righthaven coffin,'' said Pulgram, who represented the Democratic Underground as a friend of the court in the Pahrump Life case. ''Judge Mahan has ruled that Righthaven's claim against Pahrump Life should be dismissed with prejudice. This comports with other cases, including the Democratic Underground decision, which reached the same conclusion. The 'with prejudice' ruling recognizes that the decision was not based on a technical or jurisdictional issue, but rather on the lack of merit of Righthaven's claims.''
''Dismissal with prejudice also gives those whom Righthaven sued an even stronger claim to be awarded their attorney’s fees. Although we are not planning to seek fees in the Pahrump Life case, where we argued only as amici (friend of the court), this principle was important for other defendants against copyright claims brought by those who don't own the copyrights,” Pulgram said.
Separately, Righthaven defendants filed papers in two courts last week in other cases that are likely to further harm Righthaven.
Attorneys for Las Vegas real estate brokerage Realty One Group Inc., whose agent Michael Nelson won a fair use ruling against Righthaven in 2010, asked the 9th U.S. Circuit Court of Appeals in San Francisco on Friday to dismiss Righthaven’s appeal.
Attorneys for Realty One cited Righthaven’s failure to meet a Feb. 10 deadline to file its opening brief in the appeal – a common problem with Righthaven lately.
And attorneys for defendant Leland Wolf, who defeated Righthaven in court on standing grounds and then won an award for their attorney’s fees, asked Senior U.S. District Judge John L. Kane in Denver to sign Wolf’s writ of execution against Righthaven’s assets.
That way they can try to recover their fees, now totaling $35,394 with interest.
''The court is entitled to authorize U.S. marshals to execute Wolf’s judgment through seizure of Righthaven’s bank accounts, real and personal property and intangible intellectual property rights for levy, lien, auction or other treatment for satisfaction of Wolf’s judgment,'' the filing in the Wolf case said.
Righthaven, however, has said it has no cash and its interests in copyrights it obtained for lawsuit purposes have already been seized by a receiver in another case.