Righthaven confident as critics focus on ‘sham’ copyright transfers
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20 April 2011
2:01 p.m.
Sun coverage
Las Vegas copyright enforcement company Righthaven LLC is confident its lawsuits over Las Vegas Review-Journal material remain valid – despite new evidence that defense attorneys say proves the copyright assignments at issue are meaningless.
Roger Hunt, Nevada’s chief U.S. District Court judge, last week unsealed the Strategic Alliance agreement between Stephens Media LLC, owner of the Review-Journal, and its lawsuit partner Righthaven.
Attorneys defending Righthaven defendants pounced on the agreement, saying it proves Righthaven has no standing to sue over Review-Journal material because of what they called "sham" copyright transfers.
In particular, they said, the agreement provides Righthaven only the right to sue over the copyrights while Stephens Media maintains all other rights in the material covered by the copyrights such as the right to display and distribute the news stories and other material at issue.
Attorney Laurence Pulgram of the law firm Fenwick & West LLP in San Francisco, representing defendant the Democratic Underground, said in a court filing that since Righthaven is conveyed only the rights to sue, "the assignment to Righthaven is invalid."
He also said that since Righthaven has no right to display or otherwise use the copyrighted material, it can suffer no harm when that material is infringed on.
Defense attorneys in at least five other Righthaven cases have also seized on the Strategic Alliance agreement, saying it undercuts Righthaven’s right to sue in those cases as well.
But Shawn Mangano, a Las Vegas attorney representing Righthaven, said Wednesday he’s confident the copyright assignments will stand up to scrutiny for lawsuit purposes.
"It’s much ado about nothing," Mangano said, citing language in the Strategic Alliance agreement in which Righthaven is granted ownership of the copyrights – and then grants Stephens Media a license for Stephens Media to use the material produced by Stephens Media journalists.
"We believe it will withstand scrutiny," at the federal district court level or the appeals court level if necessary, Mangano said.
Separately on Wednesday, U.S. District Judge Gloria Navarro in Las Vegas dismissed a Righthaven lawsuit against Michael Leon of Fitchburg, Wisc., because Leon was not served on time.
The suit was dismissed without prejudice, meaning Righthaven can re-file it. She also said Leon and his attorney can petition the court for recovery of their costs – a petition Righthaven will have the right to review and contest.
The suit against Leon has grown contentious, with Mangano saying in court Wednesday he may file libel claims against Leon after, according to Mangano, Leon posted online defamatory and false information about Righthaven, Mangano and Righthaven attorney Steven Ganim on his website. Some of this information was re-posted on at least one other anti-Righthaven website.
"I’m not going to tolerate and allow someone to tarnish my professional reputation" – or make libelous claims about Righthaven and Ganim, Mangano said.
"Mr. Mangano's reference to libel indicates a lurid conception of the term," Leon said in response after the hearing.
Navarro said during a hearing she may also dismiss the suit against Leon’s codefendant, Denise Nichols, but deferred a ruling on that since attorneys for Nichols and Righthaven are in settlement talks.
In a lawsuit against Leon and an amended complaint naming Nichols, Righthaven claims they were involved in posting Righthaven-owned content from the Review-Journal and the Denver Post on the veteranstoday.com website.
Leon has denied the allegations and an attorney for Nichols filed a motion to dismiss, saying she was served with the first suit not naming her as a defendant – and has not been served with the amended complaint actually naming her.
"I am dealing with health issues. I have issues more so health-wise than when I first came up here. I don’t want this to drag out," Nichols, a retired military nurse who lives in Colorado, told the court by telephone from the Washington DC VA Medical Center, where she’s receiving medical treatment. "(Rather than) the repeat of getting another (court) filing – I want to somehow come to a conclusion on this so I can focus on my own health."
Leon said Nichols is a distinguished veteran of the Vietnam and Gulf War eras.
One of her attorneys, Michael Kimbrell of Las Vegas, has said Righthaven’s no-warning lawsuit against her "smacks of poor patriotism," as Nichols donates her time helping injured and sick veterans.
"I am ready to go my separate way from Mangano, but I regard my co-defendant, Denise Nichols, as a hero. And I will stand with her for as long as her litigation continues, whether the hell attorney Mangano likes it or not," said Leon, who has a website called malcontends.blogspot.com.
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"He[Attorney Laurence Pulgram] also said that since Righthaven has no right to display or otherwise use the copyrighted material, it can suffer no harm when that material is infringed on."
In fact, the only way Righthaven can benefit is where there *is* an infringement as they have no other source of revenue from allegedly owning the copyright since all normal sources are retained by Stephens Media.
The more I read and think about the agreement between RH and SM the more I think it is an exercise in creative accounting that gives SM a better P&L statement as well as allowing RH to claim more than what is allowed by contingency fee rules. Consider this, any losses borne by RH will show on the SM subsidiary that has an ownership interest in RH and not SM (or the RJ) itself.
Another question is this: is RH a law firm or not? If so, is a non-attorney (i.e. the SM subsidiary) allowed to have an ownership interest?
Righthaven's confidence is probably misplaced.
Righthaven was confident about the agreement -- but it makes it clear that Righthaven has no rights under that agreement but (1) to sue and (2) to get paid from Stephens Media if Stevens Media takes over a suit. And that agreement opens them up to invalidation of any copyrights they obtain for fraud on the copyright office and to sanctions, including terminating sanctions for fraud on the court.
Righthaven was confident about their business plan -- but that was already problematic because it made the whole enterprise appear to be an abuse of the litigation process to extract money. That put in within the inherent powers of the courts to put an end to it. The "agreement" with Stephens Media makes it clear -- at least in my view -- that these suits are not brought to protect the rights of authors or creators, or to protect any legitimate property interest, or to encourage creativity directly or indirectly, but rather to abuse both the copyright process and the litigation process to extract money by annoyance under the color of law.
Frankly, I do not understand what could cause Righthaven's attorneys to apparently forsake their duties as officers of the court by aiding and abetting the Righthaven "business plan." Perhaps they know something I don't about the particular facts of their peculiar cases. But it would appear that referral by the courts for discipline might be a reasonable and logical outcome.
Simply put, if Righthaven's only interest in the copyright is for fiscal exploitation its goose should be cooked. On to your next scam Gibby.
Sounds to me this is like when the President says about an embattled cabinet member, "He has my full confidence" and then is forced to resign a couple of days later saying he wants to spend more time with his family.
Chunky says:
The sooner they rid our planet of groups like Righthaven the better off we'll all be whether it is copyright or any other form of lawyering where they abuse the system, the plaintiffs and the defendants.
That's what Chunky thinks!
"I'm not going to tolerate and allow someone to tarnish my professional reputation" -- or make libelous claims about Righthaven and Ganim, Mangano said.
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Dude, do a Google search of your name and see what comes up. Righthaven will be stuck on you like super glue. It won't come off without taking a little of your hide. You've made your reputation.