Righthaven plans appeal to block auction of copyrights

Copyright lawsuit filer Righthaven LLC of Las Vegas will ask an appeals court to block a planned auction of its copyrights, an attorney said Thursday.

Shawn Mangano, an outside attorney for Righthaven, said he was drawing up an appeal and would file it with the 9th U.S. Circuit Court of Appeals in San Francisco in the coming days.

On Monday, a federal judge in Las Vegas granted a Righthaven defendant’s motion that a receiver be appointed to auction Righthaven’s 277 copyrights to satisfy part of the defendant’s $63,720 legal claim against Righthaven. Righthaven at that time had seven days to transfer its intellectual property to the receiver.

Righthaven’s federal copyright registrations mostly cover material Righthaven obtained from the Las Vegas Review-Journal and the Denver Post for lawsuit purposes, but also includes sports betting content and two adult movies.

The defendant demanding the auction is Wayne Hoehn, a Kentucky message board poster who was targeted by Righthaven in one of its 275 infringement lawsuits over R-J and Denver Post material.

After Hoehn’s lawsuit was dismissed because Righthaven lacked standing to sue him and because he was protected by the fair use doctrine of copyright law, U.S. District Judge Philip Pro ordered Righthaven to cover his legal costs as he was the prevailing party.

Righthaven, however, insists that once Pro found Righthaven lacked standing to sue Hoehn, Pro lacked authority to issue the fair use ruling and he lacked authority to award the legal fees to Hoehn.

The judge automatically lost jurisdiction over the case when he found Righthaven lacked standing, Righthaven says — though that’s an argument rejected so far by three federal judges in Nevada and Colorado.

Righthaven has already appealed dismissal of its suit against Hoehn and the awarding of legal fees.

Its new appeal will ask the 9th Circuit to block the copyright auction — and Righthaven will again argue Pro lacked authority to approve that auction, Mangano said.

The company’s reasoning, again, is that since Pro found Righthaven lacked standing, the suit should have ended there and Pro lacked jurisdiction to approve the copyright auction plan.

"That order is null and void under 9th Circuit case law," Mangano said.

The 9th Circuit on Oct. 19 already rejected Righthaven’s "urgent motion" that it block the collection activities of Hoehn and his attorneys.

Righthaven at that time was arguing, "Righthaven may be forced to file bankruptcy to protect its intellectual property and proprietary assets from seizure and liquidation."

The appeals court was unmoved in October, rejecting Righthaven’s request without commenting. But it did cite case law on standards an emergency appeal applicant must meet to show irreparable injury.

The difference between now and then, Mangano said Thursday, is that the company can show the appeals court it now faces imminent harm if the copyrights it sues over are seized.

In October, it was merely trying to stop Hoehn’s collection actions that had not yet escalated to the point where they are now: U.S. Marshals executed against a Righthaven bank account that apparently contained less than $1,000, leading to the copyright auction plan.

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