Righthaven amends lawsuit contract again
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8 July 2011
9:28 a.m.
Righthaven Archives
Newspaper copyright infringement lawsuit filer Righthaven LLC tried again Friday to revive its litigation campaign.
The company disclosed that for a second time, it has amended its copyright assignment and lawsuit contract with Stephens Media LLC, owner of the Las Vegas Review-Journal.
All of Righthaven’s 274 lawsuits over newspaper content are based on copyright assignments from – and contracts with – the owners of the Review-Journal and the Denver Post.
In a filing Friday, Righthaven suggested that despite recent adverse court rulings, it wants to forge ahead with its stated mission of protecting newspaper content – though critics say its lawsuit campaign is actually just a litigation shakedown operation aimed at putting money in the pockets of Righthaven’s investors.
"Over 200 years ago, the framers of the U.S. Constitution recognized that written works and other forms of artistic expression were deserving of legal protection," Righthaven said in Friday’s filing. "The digital age, however, has allowed infringement to occur on a massive scale. Righthaven was created precisely to stem this tide of unabashed copyright infringement on the Internet brought about by the technological ease of copying."
U.S. District Judges Roger Hunt and Philip Pro last month dismissed four Righthaven lawsuits over R-J material because, they said, Righthaven lacked standing to sue under the first and second versions of the Stephens Media lawsuit contract. Pro added a fair-use ruling against Righthaven in one of those cases.
Righthaven didn’t have standing because it didn’t have exclusive ownership of the copyrights at issue, those judges ruled.
Critics of Righthaven say copyright infringement lawsuit plaintiffs must have full control of copyrights to have standing to sue. They say copyrights have a special place in the law as they encourage creativity and expression -- and they shouldn’t be reduced to mere commodities that can be brokered to lawsuit filers.
On Friday, Righthaven responded to an order to show cause why 10 more lawsuits shouldn’t be dismissed for lack of standing. That order was issued last month by U.S. District Judge Larry Hicks in Reno and covered all 10 Righthaven cases he is presiding over.
In filings Friday, the Las Vegas company said the third version of the lawsuit contract with Stephens Media addresses the reasons Pro threw out a lawsuit against Kentucky message board poster Wayne Hoehn on standing grounds.
Righthaven said the lawsuit contract, called the Strategic Alliance Agreement, now, among other things:
--"Clearly and unequivocally grants Stephens Media a nonexclusive license to exploit assigned copyrighted works" -- content provided to Righthaven by Stephens Media and now owned by Righthaven.
--"Eliminates Righthaven’s obligation to give Stephens Media 30 days advance notice before being able to exploit a copyrighted work for any purpose other than in connection with an infringement action (lawsuit)."
--"Replaces Stephens Media’s 14-day right to repurchase a copyrighted work with the considerably more restrictive right to repurchase such content for fair market value five years after assigning the work to Righthaven."
"These provisions were expressly revised to address the concerns expressed in the Hoehn decision," Righthaven said in Friday’s filing. "In short, the restated amendment is a response to the analysis provided in the Hoehn decision and, as such, it should be found to effectively confer Righthaven standing to maintain its copyright infringement claims."
Righthaven on Friday also filed five amended lawsuits on Friday based on the third version of the lawsuit contract.
The amended complaints were filed against Brien Smith, Chris Brown Web Network, Charles Coker, John Kirk and Bob Sieber.
Hicks hasn’t indicated when he’ll rule on the standing issue.
Besides working on the Hicks cases, Righthaven is preparing for a hearing next week before Hunt in which he has threatened to sanction Righthaven, and it faces another hearing this month before U.S. District Judge James Mahan on whether a case he is handling involving the Pahrump Life blog should be dismissed.
Righthaven’s Colorado cases remain on hold while the lone judge handling them works on the standing issue, and Righthaven faces a new counterclaim and a new motion to dismiss in its lone case in South Carolina.
In a separate development in the copyright infringement world, key Internet service providers agreed this week to work with the movie and music industries to stem massive unauthorized downloading of films and songs.
In contrast to Righthaven’s no-warning lawsuits, this arrangement targeting rampant online piracy involves reminders, warnings and educational efforts targeted at suspected infringers.
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Discussion 11 comments
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That does address Judge Pro's concerns to some extent, but if Section 3 is not changed there is room to argue that SM retains control.
Actually, if Section 3 is not changed and the new provisions are deemed adequate to establish standing for RH then SM could be in a world of hurt on future counter-claims since it gives SM the right (and the implied duty) to prevent irresponsible litigation.
To be honest, I am surprised that SM agreed to those changes. I wonder if NewsMedia will go for them, especially the 5-year clause. There must have been a couple of backroom discussions and verbal promises made. There is a lot of trust being shown by SM on the surface.
The Constitution! whoopeee! Close the barn door after the herd has left.
RH is trying to patch a sinking Titanic. It's a little late.
Does Green have the guts to research and disclosed the number of times that the Greenspun Media has sent out take down notices?
My guess that the number is below 5.
Big boy......show some guts.
Well, I would imagine, sgtrock, that Greenspun COULD reply that they haven't run around with a bunch of clowns parading as lawyers suing people.
Therefore, the number of takedown notices sent is MOOT.
This is simply rearranging the deck chairs. These changes do not address any of the provisions in the Nevada Rules of Professional Conduct nor the unauthorized practice of law. Sharing legal fees or proceeds of lawsuits with non-lawyers is prohibited and these changes do nothing to address that,
Rule 5.4. Professional Independence of a Lawyer.
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) An agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.
Ken,
I think RH does not qualify as a law firm. That was probably the reason the ownership interest is held by Net Sortie LLC and not by Gibson directly. However, the waters are decidedly muddy in regard to Rule 5 above for the cases where Gibson or in-house counsel was listed as an attorney of record.
Gibson is possibly skirting around Rule 5 if no employee of RH is listed as an attorney of record. That was probably another reason they started using outside counsel.
The actions brought by Eiser are going to answer this question, hopefully.
Righthaven's guilty conscience is clear.
And they implicitly admit the deficiency of its prior representations to the Court in 200-plus cases, inviting motions for attorneys' fees and costs.
This is still an acquired right to sue, and certainly does not meet Copyright law's exculsive ownership of copyright by simply granting "Stephens Media a nonexclusive license to exploit assigned copyrighted works."
And of course, the notion of fair use is again not comtemplated by Righthaven.
I think the Courts have had enough.
It is not moot.
It Greenspuns don't send out take notices then they are hypocrites when talking about copyright protection.
They dont' protect copyright.
Green will not put that into print.
He does not have the guts.
SgtRock,
Copyright owners have just as much right not to send take down-letters as they do sending them. There are legitimate reasons to allow people to post content on their sites for promotion and SEO reasons. Having your content go viral is not a bad thing and almost always results in raising the originators profile which in turn attracts more advertisers to their sites. Most papers understand this which is why most do not or at least apply some common sense when deciding which sites to send take-down letters.
Ken, logic isn't Rock's strong point.
Sgt Rock
Also most copyright holders who send take-down letters do it because they want their stuff taken down and letters are very effective in doing this and have no interest in trying to cash in on it via lawsuits.
Hey Sgt Rock who is paying you to defend them the RJ or WRONGHAVEN????????????????????????? Or do you work for the RJ.
"Does Green have the guts to research and disclosed the number of times that the Greenspun Media has sent out take down notices?" I'm not certain if having the fortitude to do this is the issue. Perhaps more to the point is a matter of cost. As perhaps I've said before, with the exception of the Seattle Times (which was quoted I think in a Steve Green piece) I've not read of any newspapers actually taking the action of sending "take down" notices, or, with the exception of those represented by Righthaven, effecting copyright litigation. One could certainly speculate the "whys," cost, efficacy, community and/or reader resentment, et al. My speculation, however, is that the industry has enough issues these days driving revenues and newspapers are trying to be more creative in developing effective revenue streams, e.g. online subscriptions, per story payment, etc.
While "take down" notices may be effective in the result, they do come a a dollar cost, but certainly not the cost of litigation.
Just a thought, but Sarge seems to know it all, as did the failed publisher of the RJ.