Judge tosses another Righthaven copyright lawsuit
27 July 2011
Another Righthaven LLC copyright infringement lawsuit was dismissed in Las Vegas today — but Righthaven attorneys scored at least an interim legal victory when a judge refused to immediately shut down their litigation campaign.
U.S. District Judge James Mahan dismissed a long-running suit alleging the Pahrump Life blog infringed on a Righthaven copyright when the blog posted without authorization a Las Vegas Review-Journal story.
Mahan ruled Righthaven lacked standing to sue under its copyright assignment for the lawsuit under its original lawsuit contract with R-J owner Stephens Media LLC. Three other federal judges in Nevada have dismissed Righthaven lawsuits for the same reason.
Copyright case law requires plaintiffs in infringement lawsuits to have exclusive rights to the material they sue over — something four judges have now said Righthaven didn’t have under its first lawsuit contract.
Righthaven has since amended the contract and insists it has full ownership of the copyrights in its lawsuits — a contention Mahan was suspicious of during a hearing today.
“You’re trying to reverse court decisions. It contradicts the terms of the original agreement,” Mahan said.
The contradiction, Mahan said, is this: Righthaven and Stephens Media claim in their latest agreement it was their intent all along that Righthaven receive exclusive rights to the copyrights it sues over — when in fact the parties went out of their way in the original agreement to give Righthaven only the bare right to sue.
And the bare right to sue, under case law, is not enough to give Righthaven standing, four judges have now ruled.
But Mahan didn’t rule on the issue of whether Righthaven has standing to sue under its current lawsuit arrangement with Stephens Media, meaning a definitive ruling on Righthaven’s current standing to sue will have to come in another case.
Mahan also dealt Righthaven a setback today when he refused to allow the company to amend its Pahrump Life lawsuit to include the language under its amended lawsuit contract with Stephens Media. Such an amendment would be an impermissible attempt to manufacture standing by changing the facts in the case, Mahan said.
But Mahan’s dismissal of the lawsuit was without prejudice, meaning Righthaven can sue the Pahrump Life blog again over the same alleged infringement if it chooses to do so. A Righthaven attorney, Shawn Mangano, said Righthaven hasn’t yet decided whether to sue the blog again.
Mahan rejected a request by friends of the court agitating against Righthaven in the case, including the Democratic Underground, that his dismissal be with prejudice so the Pahrump Life blog could not be sued again over the same alleged infringement.
“I want people to have their day in court,” Mahan said.
Mahan didn’t comment on charges by the Democratic Underground and others that Righthaven, with its latest Stephens Media lawsuit contract, is trying to perpetrate a fraud on the court involving false copyright claims. Nor did he comment on charges that Righthaven, a company not licensed to practice law, has been involved in the unauthorized practice of law.
Righthaven has denied both of these assertions.
Nor did Mahan comment on assertions by Righthaven critics that allowing the company to file new suits would be a waste of time and judicial resources as Righthaven can never win on the issue of fair use. Under this theory, there is no market for copyrights owned by Righthaven since Righthaven uses them only for lawsuits. Therefore, there can be no market harm to these copyrights by alleged infringements — with market harm a key factor in the fair use analysis.
Mahan, based on his comments today, is likely to dismiss other Righthaven cases he is handling because of Righthaven’s lack of standing to sue under the original lawsuit contract.
These cases could be refiled, and new suits may be filed, and some may be assigned to Mahan.
Mahan suggested to Righthaven attorneys Mangano and Dale Cendali today that if that happens, they won’t be given an unlimited number of times to amend their lawsuit contract with Stephens Media.
“Now we’re on the third bite of the apple,” the judge said. “I’m running out of patience with all these amendments.”
Righthaven, which also sues over Denver Post material, since March 2010 has filed 275 lawsuits over alleged infringements of material from the Post and the R-J.
Righthaven says the lawsuits are needed to deter rampant online infringements of newspaper material.
But critics say its lawsuit campaign chills free speech as its suits often target fair uses; and that the lawsuits are merely part of a legal shakedown to earn settlement money for Righthaven and its backers.
The next big tests for Righthaven’s litigation campaign appear to be:
— Threats by additional judges to dismiss its suits for lack of standing in Nevada and Colorado.
— Continued action in the Democratic Underground’s counterclaim against Stephens Media.
— Threats by Righthaven defendants to sue Righthaven over what they call Righthaven’s fraudulent lawsuit claims.
— An ongoing investigation by the State Bar of Nevada of Righthaven. This probe is believed to involve the allegations of the unauthorized practice of law.
— Eventually, action by the 9th U.S. Circuit Court of Appeals on lawsuit dismissals Righthaven is appealing.
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