Righthaven faces new challenges to copyright suits
14 May 2011
Las Vegas newspaper copyright enforcement company Righthaven LLC’s standing to file lawsuits is being challenged again, this time in Colorado.
Righthaven since March 2010 has filed 274 lawsuits alleging copyright infringement against website operators, bloggers and message board posters. It sues over Las Vegas Review-Journal and Denver Post material.
Its standing to sue is under attack in several cases and U.S. District Judge James Mahan in Las Vegas has said that under its lawsuit contract with the Review-Journal, Righthaven does not appear to have standing to sue. Mahan has rescheduled until next month a hearing on that issue.
Defense attorneys in some of the Review-Journal cases say the lawsuits are based on "sham’’ copyright assignments and Righthaven is merely acting as the agent of Review-Journal owner Stephens Media LLC. But Righthaven insists it owns the copyrights at issue, giving it the right to sue.
The latest challenge to Righthaven’s right to sue was made this week in federal court in Denver by attorneys for defendant OSM Media LLC, which owns the website pajamasmedia.com
OSM was sued after a Denver Post TSA pat-down photo was displayed on its website along with commentary by conservative Pajamas Media blogger Bryan Preston that "this image is fast becoming the symbol of the new `Don’t touch my junk’ movement.’’
In answering the lawsuit this week, OSM attorneys argued:
— Righthaven’s claims are barred by the doctrine of fair use -- an argument judges agreed with in two Review-Journal cases
— Righthaven’s claim is barred by the First Amendment
— Righthaven lacks standing to assert infringement claims and "the Denver Post and not plaintiff is the real party in interest.’’
— "Plaintiff’s unclean hands bar it from seeking equitable relief’’ and Righthaven’s failure to provide notice of the alleged infringement before suing "bars it from seeking equitable relief.’’
OSM is represented in the litigation by attorneys Marc Flink and Raj Chohan of the Denver law firm Baker & Hostetler LLP.
In another Righthaven case over the Denver Post photo, attorneys for Ran Decisions Inc., owner of the site boardingarea.com, responded that "all or part of the claims … are barred by the conduct of plaintiff’’ along with unclean hands, fair use, the First Amendment, copyright misuse and implied license, among other things.
The "implied license’’ argument involves claims that because the Denver Post encouraged online readers to share its material, they can’t be sued for doing just that. Righthaven has disputed that argument in Review-Journal cases.
Ran Decisions is represented by Colorado Springs, Colo., attorneys Scott Johnson and Matthew Niznik of the law firm Sparks Willson Borges Brandt & Johnson P.C.
Righthaven has not yet responded to these latest filings in federal court in Denver.
Righthaven’s attorney in Charleston, S.C., in the meantime, has filed papers disputing claims Righthaven hasn’t shown it has standing to sue South Carolina blogger Dana Eiser over a Denver Post column by Mike Rosen called "A letter to the Tea Partyers.’’
Attorney Edward Fenno noted that in its lawsuit against Eiser, Righthaven had asserted: "Righthaven obtained ownership of the copyright in and to the work (column) through a valid and enforceable assignment from the original owner of the rights in and to the work. The assignment granted Righthaven full ownership in and to the copyright to the work, as well as specifically assigning any and all rights to seek redress for past, present and future infringements, both accrued and unaccrued, in and to the work.’’
Righthaven’s lawsuit contract with the Denver Post has not yet been made public, but it appears to be similar to the Stephens Media contract in that Righthaven licenses back to the Post rights to use the material covered by copyrights.
Also, Righthaven defendant Tony Carl Loosle of Logan, Utah, asked U.S. District Judge Kent Dawson in Las Vegas last week to put his case over Review-Journal stories on hold until Mahan rules on the standing issue.
Righthaven and Dawson have not yet responded to that request.
Loosle complained Righthaven is engaging "in the common law sin of `champerty,’ which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit.’’
Righthaven complained in the April 21 lawsuit against Loosle and TCS Inc. that stories from the Review-Journal and the Las Vegas Sun had been posted without authorization on the website lasvegasinfonewspaper.com.
Loosle hasn’t yet responded to Righthaven’s allegation against him of "serial, unadulterated copyright infringement’’ including posting a Sun story about a Righthaven lawsuit.
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