Another heavily-litigated Righthaven LLC copyright infringement lawsuit has been dismissed because of Righthaven’s lack of standing to sue over Las Vegas Review-Journal content.
U.S. District Judge Kent Dawson in Las Vegas on Friday dismissed Righthaven’s lawsuit against Bill Hyatt, who was sued last October over allegations he posted without authorization an R-J column on his website 1ce.org, which was called “News for Everyone.”
This was the seventh such dismissal since June 14.
The suit was among 275 filed by Righthaven since March 2010 involving material from the R-J and the Denver Post. Righthaven spots alleged online infringements, obtains copyright assignments from the newspapers and then sues the alleged infringers on a retroactive basis and without warning or a takedown request.
The retroactive basis of the lawsuits is important because Righthaven claims to acquire from the newspapers rights to sue not just for present and future infringements, but for accrued damages from past infringements – rights defense attorneys insist Righthaven doesn’t have.
Hyatt’s case gained notoriety when, after he was served with the lawsuit but didn’t respond to it, a clerk’s default was entered against him and Righthaven then moved for a judgment against him. That was the first judgment request against a defaulting Righthaven defendant.
In its February request, Righthaven asked Dawson to award it control of the 1ce.org website domain name, $150,000 in damages, $1,500 in legal fees and recovery of its $350 lawsuit filing fee.
But a lot has happened since February: Four federal judges have ruled Righthaven lacked standing to sue over R-J material, Righthaven’s website domain name seizure demands were invalidated, Righthaven was hit with two more fair use defeats on top of one from 2010 and the national Media Bloggers Association intervened in Hyatt’s case as a friend of the court.
The bloggers urged Dawson not to reward Righthaven for what they called its "get-rich-quick scheme" involving no-warning lawsuits against targets including "unwitting and, perhaps, careless bloggers."
Righthaven, however, argued the Media Bloggers Association should not be allowed to participate in the case because "MBA’s proposed brief reads like it was disseminated on an anti-Righthaven blog – not by counsel for an alleged association of Internet bloggers."
Dawson, who earlier dismissed a Righthaven lawsuit against defendant Dean Mostofi, on Friday dismissed the Hyatt suit on the same grounds that Righthaven lacked standing to sue because of a flawed copyright lawsuit contract with the owner of the Review-Journal.
The original version of the lawsuit contract with Stephens Media LLC was flawed because it left the R-J in control of the material at issue in the Righthaven lawsuits over R-J material. Judges said copyright plaintiffs have to have exclusive rights to the material they sue over, something the contract – called the Strategic Alliance Agreement -- didn’t provide Righthaven.
A judge in Denver is considering similar arguments as he weighs whether to dismiss Righthaven lawsuits over Denver Post material.
Dawson, in his order Friday, noted Righthaven and Stephens Media went out of their way to ensure Righthaven didn’t have exclusive copyright ownership rights.
"The Strategic Alliance Agreement at issue in this case expressly denies Righthaven any right from future assignments other than the bare right to bring and profit from a copyright infringement action. It is clear from Section 7.2 of the SAA that plaintiff is prevented from obtaining, having, or otherwise exercising any right other than the bare right to sue, which is expressly forbidden pursuant to (case law). As a result, plaintiff lacks standing to maintain this lawsuit, because it is clear that the entirety of the SAA was designed to prevent Righthaven from becoming `an owner of any exclusive right in the copyright’ (citing case law), regardless of Righthaven and Stephens Media’s post hoc (after the fact) explanations of the SAA’s intent or later amendments," Dawson wrote in his order.
Dawson rejected claims by Righthaven that a May 9 amendment to the SAA "fixes any possible errors in the original SAA that would prevent plaintiff from having standing in this matter."
"Here, plaintiff and Stephens Media attempt to impermissibly amend the facts to manufacture standing. Therefore, the court shall not consider the amended language of the SAA, but the actual assignment and language of the SAA as it existed at the time the complaint was filed.
"Because the SAA prevents plaintiff from obtaining any of the exclusive rights necessary to maintain standing in a copyright infringement action, the court finds that plaintiff lacks standing in this case," Dawson’s ruling said.
Dawson’s ruling of Friday likely isn’t the last word on whether Righthaven currently has standing to sue over R-J material.
After its standing to sue under the May 9 Strategic Alliance Agreement was rejected by U.S. District Judge Philip Pro on June 20, Righthaven and Stephens Media amended the lawsuit contract a second time on July 7. The latest version, for reasons that haven’t been disclosed, wasn’t presented to Dawson for his consideration in the Hyatt case.
Righthaven says the July 7 amendment gives it the absolute right to sue, a contention defense attorneys dispute.
In other Righthaven developments last week:
• Righthaven asked the 9th U.S. Circuit Court of Appeals to overturn an order by Pro that Righthaven pay $34,045 in legal expenses for Kentucky message board poster Wayne Hoehn.
Righthaven earlier appealed Pro’s ruling dismissing the suit because Righthaven lacked standing and because Hoehn was protected by fair use in posting an entire R-J column on an online message board.
• A Righthaven lawsuit against Sevaan Franks was dismissed after Righthaven failed to show Franks was served by the deadline with the Jan. 17 lawsuit.
The latest such dismissal brings to seven the number of Righthaven dismissals for lack of service since July 20.