Judges still weighing key Righthaven cases
3 June 2011
Litigants in the Righthaven copyright infringement lawsuits may need to wait awhile before judges issue key rulings on whether Righthaven has standing to sue over Las Vegas Review-Journal and Denver Post material.
Las Vegas-based Righthaven LLC is a company that since March 2010 has filed 274 lawsuits over alleged online infringements of material from those newspapers.
Two suits have been dismissed on fair-use grounds and Righthaven is appealing both rulings.
But a bigger legal headache for Righthaven involves widespread pending challenges to its standing to sue and counterclaims alleging the lawsuits are based on "sham" copyright assignments – charges disputed by Righthaven.
U.S. District Judge James Mahan in Las Vegas on Friday canceled a hearing set for Monday on the issue and rescheduled it for June 30. That will accommodate the schedules of the attorneys and provide time for more briefs to be filed in the case involving the Pahrump Life blog – a case in which Mahan has said it appears Righthaven doesn’t have standing to sue over a story that appeared in the Review-Journal.
As for the Denver Post lawsuits in Colorado, attorneys filed an agreement Friday in one case that – if approved – would extend the discovery and briefing period for up to about two months.
In this case, against Leland Wolf and the It Makes Sense Blog, the lone Colorado judge handling the Righthaven cases, Senior U.S. District Judge John L. Kane, is expected to decide if Righthaven has standing to sue under its lawsuit contract with the Post and its owner MediaNews Group.
Righthaven has agreed to provide Wolf and his attorneys with the contract providing for MediaNews Group to assign copyrights to Righthaven.
Kane previously put the 35 pending Colorado cases on hold while he decides challenges to Righthaven’s standing to sue.
In other Righthaven developments:
-- Righthaven has a new local attorney in South Carolina to represent it in its lone case there against Dana Eiser, who was sued in December over allegations a Denver Post column was reproduced on her blog without permission. Eiser has denied the copyright infringement allegations and has hit Righthaven with a counterclaim. Righthaven’s new attorney there is Edward Bertele of Charleston, S.C.
-- A judge in Las Vegas has yet to rule on motions that Righthaven pay attorney’s fees for former defendants Michael Leon of Fitchburg, Wisc., and Denise Nichols of Wheat Ridge, Colo. They were accused of posting Review-Journal and Denver Post material, respectively, on a website for veterans. The suit against Leon was dismissed and it was dropped against Nichols.
-- A judge in Colorado has yet to rule on requests that Righthaven pay the attorney’s fees for autistic blogger Brian D. Hill, a case that caused the judge to criticize Righthaven’s business model before Righthaven dropped the suit.
-- Other judges in Las Vegas continue to consider challenges to Righthaven’s right to sue and fair use arguments in high-profile cases involving the Democratic Underground, Thomas DiBiase, Vote for the Worst LLC, Wayne Hoehn, the Virginia Citizens Defense League, Dean Mostofi and Pak.org. Numerous other Righthaven cases in Nevada appear to be stalled while attorneys wait for a definitive ruling on the standing issue.
-- One of the Las Vegas judges also is still considering arguments for and against awarding damages against defaulting defendant Bill Hyatt.
-- One of the website operators most recently sued by Righthaven over a Review-Journal story, Law Med Consulting LLC, denied the allegations against it, saying it’s protected by fair use, and proclaiming: “Bring it on."
"Law Med finds itself in the middle of landmark predatory litigation over Internet content rights," the company said in a website post about the lawsuit.
"The lawsuit against Law Med apparently claims copyright violation for content used in our reporting of the Nevada Hepatitis C outbreak. Our targeted audience of anesthesia providers has a unique professional interest in the Nevada incident, and our theme of law converging with medicine make it a highly relevant topic to our blog," the post said.
"The Law Med Blog can state without hesitation that should the lawsuit filed be served, Law Med will NOT enter into a settlement but will file an answer and any motions, counterclaims, etc., that are warranted and avail itself of all legal avenues and remedies in its defense. We will not simply soil ourselves and take out our checkbook because a ‘big scary lawsuit’ has been filed. We are fortunate to have the knowledge and resources that allow us to see this for what it is and exert our rights under the law to successfully defend against it. The outrage is that other defendants do not… and Righthaven counts on that fact when targeting them," the post said.
Stephens Media LLC, owner of the Review-Journal and whose affiliate company is an investor in Righthaven, however, has said the copyright lawsuits are necessary to combat a "parasitic" business model in which websites steal content from newspapers.
-- A person familiar with the Righthaven lawsuits said he was contacted by a Denver Post reporter, indicating the Post may be working on its first story about the Righthaven suits involving -- so far -- a Denver Post photo and two columns. Righthaven’s lawsuit arrangement with the Denver Post has previously been covered by The Associated Press, the New York Times, Bloomberg, Denver Westword and others.
Observers are interested in any commentary that may be provided by Denver Post Chairman and Publisher William Dean Singleton, who is also chairman of the board of directors of The Associated Press. Singleton has been a proponent of protecting news industry content and the AP is launching a News Licensing Group to protect and license original news content.
The Denver Post TSA pat-down photo responsible for most of the Righthaven suits over Post material was distributed by the AP to media outlets and the photo went viral on the Internet, with many defendants saying they had no idea it first appeared in the Post or that it was even taken in Denver.
In the Pahrump Life case in Las Vegas, in the meantime, a copyright expert well known to Righthaven and Mahan has filed a friend of the court brief asserting Righthaven doesn’t have standing to sue.
The brief was filed Friday by Jason Schultz, who earlier participated as a friend of the court in a Righthaven case Mahan threw out on fair use grounds. Schultz is co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California-Berkeley and formerly was an attorney for another Righthaven foe, the San Francisco-based Electronic Frontier Foundation (EFF).
The EFF has done the most damage to Righthaven so far by participating in the fair use case Mahan ruled on, by convincing a Las Vegas judge to unseal Righthaven’s lawsuit contract with the owner of the Review-Journal and by winning a key ruling throwing out Righthaven’s standard lawsuit demand that third-party domain name registrars seize defendants’ website domain names and turn them over to Righthaven.
In his brief, Schultz reiterated what the EFF and other defense attorneys have said about Righthaven’s lawsuits over Review-Journal material: Righthaven lacks standing since it only acquires the right to sue while Review-Journal owner Stephens Media LLC remains – through licensing, lawsuit-control and copyright-buyback provisions -- the true copyright owner.
This argument may apply to the Denver Post lawsuits as well, since MediaNews has suggested that after it assigns copyrights to Righthaven, Righthaven has licensed back to MediaNews the rights for MediaNews to use Denver Post material supposedly owned by Righthaven.
"One of the central constitutional and statutory purposes of copyright law is to reward authors for their creative endeavors," Schultz wrote in his brief filed Friday. "Righthaven … seeks to serve the purposes of its litigation-based business model by asking this court to severe the link between true (copyright) ownership and standing through endorsement of its pretextual attempt at assignment. This court should reject this effort and continue to limit copyright infringement standing to situations that support copyright ownership and creativity, not aggregate litigation efforts by parties that have no connection to the creative or publishing process."
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