New attacks launched on Righthaven litigation campaign
2 July 2011
The copyright infringement lawsuit campaign of Righthaven LLC of Las Vegas faces new attacks by three defendants.
Since March 2010, Righthaven has filed 274 federal lawsuits alleging online copyright infringement of material from the Las Vegas Review-Journal and the Denver Post.
Righthaven’s no-warning lawsuit campaign has been marred by three fair use losses since October, as well as rulings last month throwing out four lawsuits on a standing issue and a judge’s threat of sanctions against Righthaven over alleged misrepresentations.
Five federal judges in Las Vegas, Reno and Denver have either dismissed — or are threatening to dismiss — Righthaven lawsuits for lack of standing.
Righthaven says its suits are needed to combat widespread misappropriation of news material by website operators, bloggers and message-board posters. But defense attorneys and critics say its suits are based on “sham” copyright assignments that don’t actually give it the right to sue.
Nevada Judges Edward Reed Jr., Robert Jones, Howard McKibben, Lloyd George, Gloria Navarro and Kent Dawson haven’t yet indicated if they’re inclined to dismiss the Righthaven cases they are handling based on the standing issue.
Defendants in some of the cases assigned to those judges have filed new or updated motions to dismiss.
One was filed Thursday by attorneys for the Virginia Citizens Defense League, who asked Navarro to dismiss the suit pending against it based on the precedent set by earlier decisions on standing by Judges Roger Hunt and Philip Pro. Hunt and Pro found Righthaven doesn’t have full ownership of the copyrights at issue, so it can’t sue over them.
In their filing, the Virginia Citizens Defense League attorneys also threw in another argument against Righthaven’s lack of standing for a federal lawsuit over the posting of an R-J story on the Virginia group’s website.
“Righthaven also lacks standing under Article III” of the U.S. Constitution, the Virginia Citizens Defense League attorneys wrote in their filing.
“The central element necessary for Article III standing is...an ‘injury in fact’ — an actual or imminent harm,” their filing said.
They said Righthaven’s copyright lawsuit contract with Review-Journal owner Stephens Media LLC “makes it abundantly clear that Righthaven suffered no injury or harm from the alleged infringement.”
“Righthaven alleged that it was injured because of infringements of its exclusive rights to reproduce, to prepare derivative works, to distribute copies and to publicly display the work (story),” the filing said. “But it did not hold any of those exclusive rights. They were held by Stephens Media. Thus, any infringements on those rights could not possibly harm or injure Righthaven.”
The Virginia group is represented in the litigation by Fairfax, Va., attorneys Richard Gardiner and Dan Peterson; and by Reno attorney Robert DeLong.
Also responding to a Righthaven lawsuit last week was Johannes Garrido in San Ramon, Calif. Righthaven says he has a website called extremedui.net, where it says a Review-Journal story was posted without authorization.
Garrido, responding without an attorney, wrote: “This matter could have been resolved if Righthaven would have contacted us first and let us know their belief of a copyright violation and we would have responded accordingly.”
“Defendant denies any allegations of intent of copyright infringement,” he added.
In addition, a motion for dismissal was filed last week by attorneys for Garry Newman, whose case is being handled by Judge James Mahan.
Mahan has already threatened to dismiss Righthaven cases on the standing issue and, in the key Pahrump Life case, has set new hearing dates for this month.
Newman’s attorneys said in their motion for dismissal that Newman lives in England and doesn’t target his website to Nevadans, so the Nevada court doesn’t have jurisdiction over him.
“Prior to receiving notice of the complaint, Newman had never heard of Righthaven or the Las Vegas Review–Journal. As the website’s readership is worldwide and not focused on or limited to any particular geographic region, Newman disagrees with Righthaven’s contention that reproduction of the article on the website was of specific interest to Nevada residents,” their filing said.
Righthaven hasn’t yet responded to this assertion, but in the past it has sued and settled with defendants in Canada and Europe.
Righthaven’s suit charged that a Review-Journal story about the Vdara hotel “death ray” had been posted on Newman’s www.facepunch.com website without authorization.
Newman’s attorneys responded that the story was posted by user “Wii60” of the site, which is a forum for online game enthusiasts.
“Newman does not direct or create content that third parties, such as Wii60, post on the website,” his response said.
“Prior to filing the complaint, Righthaven never sent a cease & desist letter requesting removal of the alleged unauthorized reproduction. Immediately upon learning of Righthaven’s allegations, Newman...disabled the thread to the posting,” the response said.
Newman’s attorneys noted Righthaven’s standing to sue over Review-Journal material has been rejected by Judges Hunt and Pro.
“Righthaven’s motivation in filing suit against Newman is suspect. As Judge Hunt found in dismissing Righthaven’s complaint against Democratic Underground, Righthaven’s only right under the (Stephens Media/Righthaven lawsuit contract) is to ‘bring and profit from copyright infringement actions,’” the filing said.
“Righthaven cannot claim with a straight face that it has been harmed. Righthaven acknowledges that the website attributed the Las Vegas Review-Journal as the original source of the article for the entire time in which the article appeared on the website,” the filing said.
“Even if Righthaven were deemed the prevailing party, it would not be entitled to recover either statutory damages or attorneys’ fees against Newman, since copyright registration for the article was not obtained until after the alleged infringement,” Newman’s attorneys argued, citing case law.
“These facts indicate that Righthaven’s true motivation is to target and extract settlements from specific defendants, like Newman, who will have difficulty defending against litigation (because of cost or distance or, in this case, both),” their filing said.
Newman is represented in the suit by attorneys with the law firms Bone McAllester Norton PLLC in Nashville and and Brownstein Hyatt Farber Schreck LLC in Las Vegas.
In another development, Righthaven will have to deal with South Carolina attorney Todd Kincannon and his group, Citizens Against Litigation Abuse Inc., in the Pahrump Life case in Las Vegas.
Mahan has granted the group’s request to appear as a friend of the court, where it will argue Righthaven has been practicing law without a license.
“The court has reviewed the proposed brief and agrees that it may be useful to the court in ruling on the pending order to show cause why the case should not be dismissed for lack of standing,” Mahan wrote in a June 29 order.
Kincannon is already litigating against Righthaven in three courts in South Carolina.
In a petition filed with the South Carolina Supreme Court this week, Kincannon charged that Righthaven’s lawsuits over R-J and Denver Post material are part of a business model that “is blatantly the unauthorized practice of law, in South Carolina and everywhere else.”
He says that’s because Righthaven, which is not a law firm, shares lawsuit revenue with its media clients.
Kincannon complained that a non-law firm entity in the business of seeking lawsuit assignments, pursuing litigation in its own name and splitting the proceeds with the assignor “commits a fraud on the court and the unauthorized practice of law.”
Righthaven has not yet responded to these assertions.
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