Las Vegas Sun NewsRighthaven refiles copyright suit after dismissal
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13 July 2011
7:52 p.m.
Righthaven Archives
Hours after a federal judge dismissed a Righthaven copyright lawsuit against Dean Mostofi on Wednesday, Righthaven sued Mostofi again — this time based on its updated lawsuit contract with the Las Vegas Review-Journal.
“The dismissal for lack of standing in Mostofi I was based exclusively on the contents of the SAA (the lawsuit contract between Righthaven and Review-Journal owner Stephens Media LLC),” Righthaven said in its new lawsuit filed in U.S. District Court for Nevada. “The Mostofi I decision did not consider Righthaven’s standing based on the terms of the (SAA) clarification, the restated (SAA) amendment and the specific assignment for the work (R-J story).”
“The re-filing of Righthaven’s infringement claim against defendant through this complaint not only places the assignment, clarification and restated amendment before the court, but these previous unconsidered materials in Mostofi I unquestionably establish Righthaven’s standing to seek redress for defendant’s blatant and willful copyright infringement of the work,” the new lawsuit says.
The new lawsuit reiterates allegations that Mostofi infringed on an R-J story last year called “Court reprimands lawyer over misleading ads.”
Mostofi hasn’t yet responded to the new lawsuit, but in the original suit he called Righthaven with its no-warning lawsuits a “schoolyard bully.”
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Not only does the new changes to the SAA amount to nothing but Mostofi has a good argument for a malicious lawsuit. No one can say this new lawsuit isn't personal. I am sure the Nevada courts will see right through this. Righthaven needs to go.
The critical question will be if the alleged infringement still exists.
Judge Dawson threw out the amendments to the SAA as being an inappropriate attempt to manufacture standing and held that the SAA as it existed at the time of the original filing was controlling. If Dawson does not allow the restatement to be retroactive, then Righthaven will either have to base a claim on a current infringement, or argue that even though any infringement has been corrected and no longer exists, there was harm in the past.
I don't think that is going to fly.
All of this presupposes that this is a completely new suit. If it is in fact a refiling with "corrected" or "clarified" information then Dawson will throw it based on the same logic that invalidated the first set of amendments.
But contrary to Ken, I think the re-stated SAA might have enough changes to actually pass muster (on paper) with some judges.
But the underlying question remains: why does Righthaven want the copyright transferred in the first place? Any publisher could simply hire an attorney to bring suit against an infringement and none of these questions of standing would ever come up. The answer has to be tied to bookkeeping practices and possible fee limitations.
Why do you folks refer to every one of the Righthaven infringement suits as "no warning" lawsuits? There is absolutely no requirement in the law for them to give anyone warning. While I despise how these people operate, there are those of us who have legitimate Copyrights and who need protection. While the stuff that Righthaven does is not cool with me, there is no relevance whatsoever to their decision to file suits with no warning. This would be akin to starting to say "Police executed a no-warning arrest of the Henderson bank-robber today." Warning is not required under the US Copyright Act.
No-warning complaints are such because they are not preceded by cease-and-desist letters. In a vexatious, $150,000 federal copyright lawsuit, filed with no standing, this is kind of a big deal.
There is explicit language in Copyright law to further discussion of creative works through non-commerical fair use. One problem with Righthaven is they take no consideration of this policy rationale in attempting to use the federal court system as a ATM.
I think your analogy fails.
I do believe is time for a Rule 11 violation complaint as in: "By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation... ."
http://www.law.cornell.edu/rules/frcp/Ru...
Let's say I buy a used car that was in an accident. It has a dented bumper when I buy it. Can I sue the guy that ran the red light and caused the accident that dented the bumper on the car that is now mine? Should I be able to sue that guy? The law says running red lights IS a bad thing, so can I argue that allowing me to bring that guy to justice is necessary to protect public safety? Or was the injury suffered by the previous owner and not me. Or does the fact that the fair market price of the damaged used car would have reflected the loss of value caused by the accident damage mean that I as the buyer suffered to no loss from the accident? Suppose I made a deal with the former owner that said I could sue for the previous accident damage and we would split the recovery, now can I sue that guy?
Does anyone know if this refiling is Mangano again?
@Michael Leon can you point me to any portion of Title 17 that requires notice before a complaint is filed in Federal Court?
And you're totally conflating the issue of Righthaven's standing with the need for a warning. I agree they have standing problems. But again there is not - nor can you point me to - a single line of US code requiring that some sort of warning be given to people who are sued under Title 17. The law doesn't require it. Moreover, the FRCP nor the CFRs that are relevant don't call for it, nor does any federal court in this land contain such language in their local rules.
Feel free to provide citations proving me wrong - just don't try changing the argument.
Again for clarification - I think Righthaven sucks. I am not defending them - just trying to knock down the FUD that by issuing no warning they are doing something unique. I file infringement actions all the time without warning and I've never lost. Then again I have standing :)
Scott
There is no requirement and no one is suggesting their is but it is a good idea and one is to protect the copyright holder. For one it strengthens your case. Judges presiding over Righthaven cases have commented that not sending take-down letters undermines their case of will-full infringements.
I think Righthaven is the prime example for sending take-down letters first. As a side benefit it keeps you from being seen as a total douche-bag.
@Ken I guess you're speaking for Michael - but okay. I have no problem with people sending take down notices IF THEY FEEL LIKE IT. And sorry but if someone is infringing me and I sue to stop their bad actions THEY are the only douche-bag involved.
As far as sending the letter first, it doesn't actually impact the outcome but it could impact damages.
All of this is conflation and deflection. My point was and is, stop referring to these as "No-Warning" lawsuits as if a warning is required. It isn't. Period.