Judge asks for more information in Righthaven copyright case

A Las Vegas judge signaled Friday that he wants to take a closer look at one of the Righthaven LLC copyright infringement lawsuits — and that may not be good news for Righthaven.

Righthaven is the copyright lawsuit partner of the Las Vegas Review-Journal and the Denver Post and has filed 275 lawsuits since last year over material from those newspapers.

The litigation campaign involving no-warning lawsuits has been unprecedented for the newspaper industry, and it’s now stalled over legal setbacks sustained by Righthaven.

Four federal judges this summer ruled Righthaven lacked standing to sue over Review-Journal material under a flawed lawsuit contract with the R-J, though Righthaven says it has fixed the contract and now has standing to sue.

A fifth judge, however, continues to threaten to dismiss Righthaven cases in Denver over Denver Post material.

On top of that, judges have dismissed three lawsuits after finding website owners and message board posters were protected by the concept of fair use when they posted R-J material on websites without authorization.

Righthaven is appealing several of these adverse decisions.

U.S. District Judge James Mahan, in the meantime, filed an order Friday that will give Righthaven critics another chance to deal the company a legal blow.

During a hearing July 27, Mahan said he planned to dismiss a Righthaven lawsuit against the Pahrump Life blog over an R-J story because Righthaven lacked standing at the time the suit was filed in 2010.

Mahan, during the hearing, denied a request by Righthaven attorneys that they be allowed to file an amended lawsuit under their new lawsuit contract with the R-J. The judge said that would be an impermissible change in the facts aimed at manufacturing standing.

But in a boost for Righthaven, Mahan said he planned to dismiss the lawsuit without prejudice. That would allow Righthaven to sue the same defendant again over the same alleged infringement, this time under its revised lawsuit contract.

Mahan during the hearing expressed skepticism that Righthaven currently has standing to sue, saying: “You’re trying to reverse court decisions. It contradicts the terms of the original agreement.”

However, he said at the time, “I want people to have their day in court.”

But in his order Friday, Mahan indicated he may reverse course and is now considering a dismissal with prejudice, which would prevent further Righthaven lawsuits over that alleged infringement. Such a dismissal also may boost the defendant’s chance to recover its legal fees.

His order was prepared largely by attorneys fighting Righthaven from the Electronic Frontier Foundation and the Democratic Underground. The Democratic Underground is a party in another Righthaven suit and was acting as a friend of the court in Pahrump Life.

After the July 27 hearing, both the Democratic Underground and Righthaven submitted proposed orders for Mahan to sign closing the case. On Friday, Mahan signed a revised version of the Democratic Underground’s proposed order.

That version of the order recounted Righthaven’s many problems with standing in other cases as well as severe criticism of Righthaven by U.S. District Judge Roger Hunt.

Hunt has found Righthaven for a time had misled Nevada’s federal judges about its standing to sue and he fined the company $5,000 for deliberately hiding the role of the R-J’s parent company in its lawsuits over R-J material.

The order signed by Mahan on Friday also noted that on July 7 Righthaven and Stephens Media LLC, owner of the R-J, had executed a second amendment to their lawsuit contract that was aimed at beefing up Righthaven’s standing to sue.

“It is clear from the language of the RHOA (Righthaven Operating Agreement) that it was never the intent of the parties that created Righthaven for true copyright ownership to vest. Instead, Righthaven was created solely to acquire a ‘limited, revocable assignment (with a license-back) of copyright from third persons.’ That further supports the finding that Righthaven lacks the requisite ownership rights to assert standing in this action,” Friday’s order said.

“While plaintiff (Righthaven) attempts to present the restated SAA (the lawsuit contract called the Strategic Alliance Agreement) as simply ‘restating’ the original SAA document, the restated SAA’s terms substantially contradict the original SAA and the clarification, as well as the business objectives of the RHOA. These contradictions cannot be reconciled with the original complaint. Righthaven cannot cure its lack of ownership at the initiation of this lawsuit by means of an amendment,” the order said.

Mahan concluded by ordering the parties to submit more briefs on “the relationship of Righthaven’s ownership of the copyright at the time the suit was filed to (1) Righthaven’s standing in this case and (2) the merits of Righthaven’s copyright infringement claim.”

“The court also requests briefing on how the relationship of these two issues affects dismissal of the case; specifically, whether the matter should now be dismissed with or without prejudice,” the order said.

Mahan’s mention of the merits of Righthaven’s copyright infringement claim could be troubling for Righthaven, as Mahan was among the judges throwing out Righthaven suits earlier on fair use grounds.

In this case, the noncommercial nature of the Pahrump Life blog — and its mission of stimulating discussion about the public policy issue of whether a private prison should be allowed in town — appears to make a fair use finding possible based on Righthaven-created case law.

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