Righthaven’s standing to file copyright suits challenged
11 August 2011
Las Vegas copyright lawsuit filer Righthaven LLC has been lying to a federal judge as it tries to avoid the consequences of its lawsuits, defense attorneys charged Wednesday.
Righthaven is the lawsuit partner of the Las Vegas Review-Journal and the Denver Post.
Since March 2010, it has filed 275 lawsuits alleging infringements of material from those newspapers, with the suits targeting websites, bloggers and message board posters.
The lawsuit campaign is stalled after four federal judges this summer found Righthaven lacked standing to sue over R-J material because copyright assignments from the R-J left the newspaper in control of the content at issue. Copyright plaintiffs are supposed to have control of the content they sue over, the judges found.
Righthaven has also suffered three lawsuit defeats on fair use grounds and has yet to win a single lawsuit on the merits, with many of its defendants settling for a few thousand dollars.
As Righthaven tries to revive its Review-Journal lawsuits with an amended copyright assignment contract with the R-J, it’s also trying to convince U.S. District Judge John Kane in Denver it has standing to sue over Denver Post material.
With Righthaven’s Colorado cases on hold while that issue is resolved, defense attorneys filed a brief in Denver Wednesday saying Righthaven has no standing to sue over Denver Post material and assertions otherwise by Righthaven to the judge are false.
“The fact that Righthaven even makes this argument is astounding, as the exact same claim was not only rejected by the District of Nevada, it was condemned by the judge as ‘flagrantly false — to the point that the claim is disingenuous, if not outright deceitful,’” attorneys for Righthaven defendant Leland Wolf and the It Makes Sense Blog wrote in their filing.
The “outright deceitful” language is from a June 14 order by U.S. District Judge Roger Hunt in Las Vegas dismissing a Righthaven lawsuit against the Democratic Underground.
“MediaNews Group (owner of the Denver Post) did not transfer any rights (to news content) to Righthaven, and thus Righthaven has no basis to sue for infringement,” their filing said. “It would be bad enough if Righthaven were merely punishing others’ free expression based on rights it actually acquired from MediaNews Group. But, for the truth to come out — that Righthaven filed this suit and many others without receiving any rights from MediaNews — makes this lawsuit mill operation not only abusive, but fraudulent as well.
“This court must dismiss this lawsuit and treat Righthaven as what it is — a liar,” their filing said.
The attorneys, with Randazza Legal Group of Las Vegas and the law firm Contiguglia/Fazzone P.C. in Denver, also complained Righthaven has been hoping that Kane will dismiss its pending suits in Denver without prejudice — which would give Righthaven the right to sue the defendants again under an amended lawsuit contract, should MediaNews agree to amend the contract.
Dismissals without prejudice also could make it more difficult for defendants to recover their legal fees from Righthaven.
“If dismissal is without prejudice, Righthaven will simply come back, like a B-movie zombie, for another attack at its many defendants,” Wednesday’s filing said. “Righthaven knows that the prevailing defendant will seek attorneys’ fees for winning a lawsuit that never should have been brought, and wants the court’s opinion to preclude it from having to pay the costs its defendants have incurred in its dozens of illegitimately filed cases.
“Righthaven knows full well that it does not have the right to bring this case. Instead of conceding that point, Righthaven is unnecessarily prolonging this litigation. In doing so, Righthaven wants this court to believe that if a party brings a case, which it had no right to bring, then it should suffer no consequences, should pay no attorneys fees, and should simply be able to walk away — even after causing the defendant to expend thousands of dollars in attorneys’ fees. Righthaven wins one thing in this case — it wins the chutzpah award,” the filing said.
In another Righthaven case Wednesday in Las Vegas, an attorney for South Carolina defendant Dana Eiser complained Righthaven has failed to file documents in her case related to Hunt in the Democratic Underground case sanctioning Righthaven.
“Righthaven consciously chose to ignore this court’s command to produce the Democratic Underground materials and decided instead to argue that what this court did was irrelevant,” attorney J. Todd Kincannon wrote in a letter to Judge Hunt. “For any other litigant, this sort of action would be nearly unbelievable and likely the product of a mistake, but with Righthaven, deception, dishonesty and disrespect for the courts are part and parcel of the standard operating procedure.”
Hunt on July 14 fined Righthaven $5,000 for deliberately hiding the role of Stephens Media LLC, owner of the Review-Journal, in its R-J lawsuits. He also required Righthaven to provide the sanction information to certain defendants in other cases. Defendants like Eiser in other cases have been using this sanction information to show to their judges and to fight back against Righthaven.
Righthaven hasn’t yet responded to Wednesday’s court filings. While its tactics are regularly criticized, the company insists its lawsuits are needed to crack down on rampant online infringement of newspaper content.
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