Foes seek decisive ruling against Righthaven
Opponents of Las Vegas copyright lawsuit filer Righthaven LLC appealed again Tuesday to a Colorado judge to decisively end Righthaven’s lawsuits over Denver Post material.
Righthaven since March 2010 has filed 275 lawsuits alleging online infringement of Las Vegas Review-Journal and Post content.
The no-warning litigation campaign, unprecedented for the newspaper industry, hit a brick wall this summer when four Nevada judges ruled Righthaven lacked standing to sue over R-J material in seven cases. Righthaven -- which has also been hit with three fair use defeats -- last filed a lawsuit on July 13.
These rulings against Righthaven's standing to sue were based on Righthaven’s lawsuit contract with Review-Journal owner Stephens Media LLC – a contract the judges said left the R-J in control of the material at issue despite Righthaven’s claims of ownership for lawsuit purposes.
Righthaven critics say these rulings weren’t based on mere legal technicalities. Rather, they say Congress never intended for copyrights to be bartered for lawsuits as copyrights have a special place in the law encouraging and protecting the arts, expression and free speech.
Judges in Nevada, Colorado and South Carolina continue to consider whether additional Righthaven suits should be dismissed for the same reason – with Righthaven hoping one of the judges will uphold its right to sue under an amended lawsuit contract with Stephens Media.
U.S. District Judge John Kane in Denver has put 33 Righthaven cases on hold while he decides the standing issue over Post material.
Righthaven, in insisting it has the right to sue over Post content, has complained one of its critics has tried to deprive it of its due process rights in Colorado.
In a court filing last month, Righthaven said the critic – the San Francisco-based Electronic Frontier Foundation – was trying to deprive it of its rights by suggesting the lawsuit at issue be disposed of on a summary judgment basis.
Righthaven said it’s unprecedented for a friend of the court like the EFF to ask that a motion for dismissal be converted to one for summary judgment, which it said requires the application of more stringent legal analysis standards compared to a simple dismissal.
The EFF has been pressing for a decisive dismissal with prejudice or on summary judgment grounds so Righthaven can’t sue the same defendants again over the same alleged infringements should it revise its Denver Post lawsuit contract.
The EFF, a digital rights group that regularly fights Righthaven, responded with a brief Tuesday saying Righthaven’s rights aren’t in jeopardy.
"The only dispute is whether Righthaven has been afforded fair process and adequate notice for the court to rule on the evidence," EFF attorneys wrote in their brief. "Because Righthaven stipulated to discovery, produced documents and relied upon extrinsic evidence in its opposition, it has been afforded all the necessary notice and process."
Case law, the EFF said, means a party is afforded due process when it has the opportunity to be heard at a meaningful time and in a meaningful manner.
"Righthaven makes no argument why the process here, with discovery, extensive briefing, and both sides presenting evidence to a court, fails to be meaningful," EFF attorneys wrote in their filing.
The EFF then leveled a charge of its own against Righthaven, suggesting it may not have complied with "Rule 11" requiring parties in federal lawsuits to make no misrepresentations and not to file pleadings for improper purposes.
This suggestion was made as the EFF challenged claims by Righthaven that its Nevada court setbacks were based on a "completely different contract" with Stephens Media as compared to the Denver Post contract.
"Righthaven’s brazen contention that the contract is 'completely different' is easily refuted because the language speaks for itself," EFF attorneys wrote in their filing. "The terms of the critical paragraph of each contract are the exact same, save that the named parties have changed."
"Righthaven’s claim that the legal ownership issue in the present case is not identical to the legal ownership issue in the Nevada Cases is both dishonest and meritless," the EFF charged.
Its attorneys noted one of the Nevada judges has found Righthaven’s contract with Stephens Media prevented "Righthaven from obtaining, having or otherwise exercising any right other than the mere right to sue" – with the right to sue alone insufficient to qualify a party as a plaintiff in a copyright infringement lawsuit.
The EFF attorneys hope Kane will reach the same conclusion about Righthaven’s contract with MediaNews Group, owner of the Denver Post.
"The time for Righthaven’s legal charade to end is upon us," the EFF’s filing said. "They have wasted too much time and treasure of the court and the defendants and abused the legal process for long enough, suing to profit from quick settlements on a copyright they do not, and did not own."
Separately, five more Righthaven suits over R-J and Denver Post material were dismissed in Las Vegas on Tuesday after Righthaven failed to show the defendants had been served by the deadline.
The latest dismissals involved defendants:
--Medbillz Inc. (The claim in the same suit against codefendant Michael Leon was earlier dismissed and it was dropped against codefendant Denise Nichols).
--Carbon Athletics and Cody Faeth
--Jim Horn and Stephen Krashen
--Recess Mobile Inc. and Vitaliy Levit
These lift to 18 the number of such Righthaven lawsuit dismissals since July 20.
With Righthaven hoping one of the federal judges – or the 9th U.S. Circuit Court of Appeals – will revive its lawsuit campaign, Righthaven CEO Steven Gibson told Wired.com for a story today that he’s confident the company will prevail in the long run as it tries to deter copyright infringements.