Judge tosses Righthaven suit against former prosecutor

Another bitterly-contested Righthaven copyright infringement lawsuit was dismissed in Las Vegas today – but this time there was no determination about fair use.

Roger Hunt, chief U.S. District Court judge for Nevada, today dismissed the Righthaven LLC lawsuit alleging copyright infringement against former federal prosecutor Thomas DiBiase.

Just as he ruled last week in the Democratic Underground case, Hunt today found Righthaven lacked standing to sue DiBiase.

That’s because Righthaven’s copyright assignment from Las Vegas Review-Journal owner Stephens Media LLC didn’t grant Righthaven full ownership of the copyright, just the right to sue, Hunt has found.

In order to file infringement lawsuits, copyright holders must have full ownership, Hunt ruled in the Democratic Underground case.

DiBiase was sued after posting a Review-Journal story about a murder on his website, which focuses on "no-body" cases in which victims’ bodies have not been located.

Attorneys for DiBiase have argued this use of the story was protected by the fair use doctrine of copyright law as it was noncommercial and because his website performs a public service by helping bring justice to murder victims and their families.

Hunt, however, refused in today’s dismissal order to entertain DiBiase’s fair use argument.

"As Righthaven does not hold the copyright to the work (story), DiBiase lacks standing to assert his claim against Righthaven just as Righthaven lacks standing to assert its purported claim," Hunt wrote in today’s order.

Because Review-Journal owner Stephens Media LLC was not named as a defendant in a DiBiase counterclaim against Righthaven, Stephens Media doesn’t have to worry about litigating over whether DiBiase’s use of the story was fair use.

Hunt today also noted that another federal judge in Las Vegas, Philip Pro, found this week that Righthaven still lacks standing to sue over Review-Journal material even after amending its lawsuit contract with Stephens Media last month.

As far as Righthaven’s 274 lawsuits over Review-Journal and Denver Post material go, the DiBiase case was significant because of an earlier ruling by Hunt.

This was the case in which Hunt threw out Righthaven’s standard demand in lawsuits that defendants’ website domain names be forfeited to Righthaven. Also in the DiBiase case, Hunt found merit in arguments that Righthaven can’t demand attorney’s fees for suits filed by in-house counsel.

These domain name and attorney’s fees demands, along with statutory damage threats of up to $150,000, have been criticized as showing Righthaven uses the court system to bully defendants into settling.

Review-Journal owner Stephens Media, however, insists the lawsuits are targeting a "parasitic business model" in which news content is regularly infringed on.

Attorneys for the Electronic Frontier Foundation, which represented the Democratic Underground and DiBiase, in the meantime said they’re looking forward to dealing with a brief Righthaven is expected to file in another case today – a brief Righthaven likely hopes will help revive its stalled litigation campaign.

In that case involving the Pahrump Life blog, a third federal judge, James Mahan, has threatened to dismiss it for lack of standing on the part of Righthaven. Mahan has been openly critical of Righthaven and its no-warning lawsuit strategy and he issued one of the three fair use rulings against Righthaven.

Kurt Opsahl, an attorney for the Electronic Frontier Foundation in the DiBiase case, suggested the EFF is considering asking Hunt to award it its legal fees and costs in the case.

"We are considering all options for redressing the unnecessary fees and costs run up by Righthaven," Opsahl said.

As for the lack of a fair use determination for DiBiase, Opsahl said: "Mr. DiBiase engaged in a fair use of the news article. We are confident that the judge would have easily found fair use, if Righthaven had owned the copyright in the first place."

In other Righthaven developments:

--Hunt on Wednesday dismissed a Righthaven lawsuit against Daniel Barham, operator of the Urban Neighbourhood website, who had been accused of posting without authorization a Review-Journal "Vdara death ray" illustration. Hunt cited Righthaven’s lack of standing and, similar to the DiBiase ruling, dismissed Barham’s counterclaim against Righthaven with no fair-use determination.

--Righthaven, in its lawsuits over Review-Journal material, in recent days has been filing amended "certificates of interested parties" naming Stephens Media LLC as an interested party. Hunt has threatened to sanction Righthaven for, among other things, failing to include Stephens Media in these notices when it first filed its lawsuits. The notices are used by judges to determine if they have any conflicts that would preclude them from presiding over the lawsuit at issue.

"Righthaven hereby corrects and amends its prior filing based on Judge Hunt’s decision in Righthaven v. Democratic Underground, but without any admission that the previously filed Certificate of Interested Parties intentionally failed to comply with, or otherwise disregard (the disclosure rule)," these new notices say.

--Review-Journal columnist and former publisher Sherman Frederick complained about Pro’s ruling this week throwing out a Righthaven suit against message-board poster Wayne Hoehn.

That case involved a Frederick column and Pro, in his ruling, found the column was mostly factual as opposed to being creative. That was one of the factors that caused Pro to rule Hoehn’s use of the column was protected as a fair use.

"The work (column) is a combination of an informational piece with some creative elements. Roughly eight of the 19 paragraphs of the work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely `creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls," Pro wrote in his ruling.

"American newspaper editorials as a genre not creative enough to protect? Oh brother. That's a ruling that simply can't be allowed to stand," Frederick wrote in a blog post Wednesday.

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  1. For some reason Righthaven and Stephens Media are jumping through hoops trying to keep an arrangement where RH has the right to sue. I still don't understand why SM wants this arrangement other than for some fancy bookkeeping. There is no need to transfer ownership of the copyrights if all that is desired is to pursue litigation against an infringement.

    It makes one think that the "Righthaven transaction" referred to in paragraph 2 of the SAA would make interesting reading.

  2. boftx

    Yes there is much more than meets the eye here. Stephens Media is deathly afraid of being left holding Righthaven liabilities. They have to keep Righthaven around at least as a throw away company to absorb them. Once Righthaven is stuck with massive liabilities Righthaven will go bankrupt and discharge the liabilities leaving Stephens Media free and clear. This is their hope anyway.

  3. Betting we see a whole group of these suits dismissed real soon along with counter suits brought on by those that have already settled.

    Righthaven did not plan on this not going their way.

    Yes, they may be able to file BK on the Righthaven corp. once they are in deep but if some sharp attorney proves they did not properly capitalize the corporation for what they are doing then it can be pierced and the "owners" left holding the bag.

    It has happened before and I would not be surprised to see it happen in this case.

    Righthaven has made a lot of the wrong enemies this time around.

  4. I actually agree with Sherm's point about editorial columns. It seems unreasonable to suppose that such a work should be 100% creative before it deserves protection. After all, how can any worthwhile editorial or other column be written without using facts to argue from? (We're talking theory here, folks, be nice.)

    Again, we are seeing bad, or at least tortured logic being used in some cases simply because the bench has been so offended by how Righthaven has operated. Thankfully Judge Hunt had good reason to not rule on the fair use issue, it being moot in this instance due to the issue of standing.

    I am looking forward to seeing Righthaven's filing in response to Hunt's order to show cause. Now THAT should be truly creative writing.

  5. "I think once the attys' and other litigants' were to be awarded costs and fees, there are methods of the Court seizing assets." - mal

    Now that raises an interesting question, would those assets include the copyrights?

    Another fun thought, the Righthaven domain name could be considered an asset. Can you imagine the fun someone could have if it were awarded as part of a settlement? The people at EFF can have a wicked sense of humor.

  6. I have brought this idea out before that the very coprights in question should be taken as assets. If Righthaven was to lose the copyrights you would suddenly see Stephens Media agree that Righthaven never owned the copyrights so they can't be taken. Wouldn't that be interesting?

  7. interesting aspect CitizenAndVoter --- I think it gives SM far too much credit, but it's possible.

    "I am looking forward to seeing Righthaven's filing in response to Hunt's order to show cause. Now THAT should be truly creative writing."

    got that right. wow --- it could be a total disaster, if Righthaven handles it without outside counsel. lol

  8. LawMed,

    How much material was involved in the allegedly infringing item?