Critics: Righthaven not entitled to a ‘mulligan’

Critics of Righthaven LLC of Las Vegas say it shouldn’t be granted a mulligan after repeatedly misfiring with its copyright infringement lawsuits.

Righthaven, however, says judges should give it another chance to sue alleged infringers even after ruling its initial lawsuits were faulty.

These are the latest arguments filed in U.S. District Court for Nevada in a Righthaven case that may help determine the future of Righthaven’s lawsuit campaign.

Righthaven since March 2010 has filed 275 lawsuits alleging website owners, bloggers and message board posters copied and misappropriated material from the Las Vegas Review-Journal and the Denver Post.

After collecting what are believed to be hundreds of thousands of dollars in settlements with scores of defendants, Righthaven has hit a brick wall this summer with its lawsuits.

Besides three losses on fair use grounds dating to last October, Righthaven has been hit this summer with rulings by four federal judges in Las Vegas who found it lacked standing to sue over R-J material.

The judges said that despite Righthaven’s claim it owned copyrights to the material it sued over, the R-J actually maintained control of the material under its lawsuit contract with Righthaven.

Additional judges in Nevada, Colorado and South Carolina continue to weigh whether to dismiss Righthaven suits on the same grounds.

The question most recently at issue for Righthaven and its legal foes is whether these cases should be dismissed with prejudice or without.

With prejudice means the defendants couldn’t be sued again over the same alleged infringements based on an updated lawsuit contract with the R-J that Righthaven insists gives it full control of the material at issue. Such a dismissal also would boost the chances that defendants could win their legal fees in these cases.

Without prejudice would give Righthaven a chance to sue again and make it more difficult for defendants to recoup their legal costs.

U.S. District Judge James Mahan, who has already hit Righthaven with one of its fair use defeats, is considering the with/without prejudice dismissal issue in a Righthaven suit against the Pahrump Life blog over an R-J story.

"Plaintiffs -- not just in copyright disputes, but in all lawsuits -- should be able to cure a perceived lack of standing, if not by amendment, then by bringing a new suit. That is why courts in this circuit have found dismissal with prejudice to be improper," Righthaven attorneys wrote in a court brief filed in the case Tuesday.

Saying "there is no question that the defendants make their living by using other people’s works without compensation," Righthaven argued that case law makes it clear that "when a court determines that it lacks jurisdiction to hear a suit because a plaintiff lacks standing, dismissal of the action must necessarily be without prejudice."

"Moreover, once a court determines it lacks jurisdiction, it is foreclosed from reaching the merits of the action. These rules exist to protect plaintiffs whose lawsuits are dismissed for lack of standing from forever losing their day in court even when subsequent events cure the perceived jurisdictional deficiency," said the brief by attorneys Shawn Mangano and Dale Cendali.

A competing brief, however, made the opposite argument about whether Righthaven lawsuit dismissals were based on the merits of Righthaven cases.

"Righthaven has lost its lawsuit because it failed to prove an essential element of its claim -- ownership of rights in the copyrighted work. As such, the case was decided on the merits and should be dismissed with prejudice," said a brief filed by friends of the court Jason Schultz of the UC Berkeley School of Law, Citizens Against Litigation Abuse and the Democratic Underground.

"Just because Righthaven is unhappy with the facts it originally created and submitted to the courts to support its claims of ownership, this does not entitle it to declare a 'mulligan,' and submit contradictory facts in an attempt to avoid the adverse ruling," said their brief filed by attorneys who regularly litigate against Righthaven including Laurence Pulgram, Chad Bowers, Todd Kincannon and Clyde DeWitt.

Both Mahan and U.S. District Judge Roger Hunt have expressed skepticism about whether Righthaven currently has the right to sue under its amended R-J lawsuit contract, as judges have noted it contradicts the initial intent of the parties to sharply limit Righthaven’s rights under its R-J copyright assignments.

Hunt, in his latest Righthaven order, additionally questioned whether Righthaven can have a legitimate interest in any of its R-J cases because the lawsuit contract "seems very much like a contingency fee arrangement with an entity (Righthaven) unauthorized to practice law."

But it’s unknown how that skepticism may figure into Mahan’s ultimate ruling on the Pahrump Life dismissal issue.

Separately, three more Righthaven suits have been dismissed after Righthaven failed to serve the defendants in time. These bring to 11 the number of such dismissals since July 20.

The latest dismissals involved lawsuits against Ed Estes, Eric Lipman and Keith Combs.

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