Righthaven still kicking, files appeals briefs
23 November 2011
Even as creditors try to seize its assets for nonpayment of debts, Righthaven LLC showed Tuesday it was alive and kicking.
The Las-Vegas based company made its presence known by filing its first briefs in two rulings it has appealed to the 9th U.S. Circuit Court of Appeals in San Francisco.
Righthaven is the copyright lawsuit partner of the Las Vegas Review-Journal and formerly of the Denver Post.
Since March 2010, it has filed 275 no-warning lawsuits against parties it claims infringed on material from those newspapers by posting their content online without prior approval.
The litigation campaign stumbled when three lawsuits were dismissed on fair use grounds and six judges ruled Righthaven lacked standing to sue.
On the standing issue, five judges in Nevada and one in Colorado ruled that despite Righthaven’s claims of ownership, it lacked standing because the newspapers maintained control of the material Righthaven was suing over.
Righthaven hasn’t filed any new suits since July 13. It's hoping one or two of the Nevada judges who have not yet ruled on its standing to sue will revive that standing under Righthaven’s amended lawsuit contract with Stephens Media LLC, owner of the R-J.
Defendants who defeated Righthaven in court and won their attorney’s fees have complained that even as they haven’t been paid a total of $216,000, Righthaven continues to compensate outside attorneys to litigate other cases. One of these defendants, Wayne Hoehn, has asked that a receiver be appointed to auction Righthaven’s assets, though through Tuesday the court had not acted on that request.
Righthaven, in the meantime, continued to accumulate legal expenses on Tuesday as one of the outside attorneys, Shawn Mangano, filed briefs with the 9th Circuit in two of the seven cases Righthaven has appealed.
In one brief, Mangano said U.S. District Judge James Mahan in Las Vegas was wrong to find an Oregon nonprofit was protected by fair use in posting without authorization an entire R-J story on the relationship between immigrants and Las Vegas police.
A key factor in Mahan’s decision was that the defendant, the Center for Intercultural Organizing in Portland, couldn’t harm the market for a copyright to the story Righthaven obtained for lawsuit purposes from Stephens Media.
With Righthaven using the copyright for lawsuit purposes only, there was no market for the copyright and Righthaven’s litigation strategy “has a chilling effect on potential fair uses of Righthaven-owned articles, diminishes public access to the facts contained therein, and does nothing to advance the Copyright Act’s purpose of promoting artistic creation,” Mahan found.
In one of his more controversial findings, Mahan ruled the 33-paragraph story involving multiple interviews was mainly “informational” as opposed to being “creative,” with creative works receiving greater copyright protection.
Mangano, in his brief, complained that Mahan took the “drastic” step of ruling without giving Righthaven a chance to investigate how the Oregon center was using the story to raise money from donors.
Mahan “found that because the work was a news article, the totality of its content was informational and permissible for productive use by others,” Mangano wrote in his brief. “In reaching this erroneous conclusion, the district court failed to accord any degree of creative effort to the work (story) whatsoever.”
In his second appeals brief, Mangano appeared to face an uphill challenge in arguing that Righthaven had standing to sue or should have been allowed to sue after amending its Stephens Media lawsuit contract to fix defects — assertions rejected so far by the five Nevada judges.
Mangano specifically asked the appeals court to reinstate its lawsuit against former federal prosecutor Thomas DiBiase, who has a public service website about murders in which the victims’ bodies have not been recovered and posted an entire R-J story about such a slaying.
Mangano argued that in dismissing the DiBiase lawsuit, U.S. District Judge Roger Hunt in Las Vegas had misinterpreted the Righthaven/Stephens Media lawsuit contract and misread the appeals court’s case law on the standing issue.
“The district court (Hunt) relied upon its erroneous interpretation of the SAA (lawsuit contract) and the (copyright) assignment as grounds for completely dismissing Righthaven’s request that it consider the parties’ intent when entering into these contractual agreements,” Righthaven’s brief said.
The DiBiase case was noteworthy because in that lawsuit Hunt threw out Righthaven’s standard lawsuit demand that defendants forfeit their website domain names to Righthaven — a demand critics said wasn’t authorized in the federal Copyright Act and was meant to coerce defendants into settling.
Righthaven had insisted the demand was proper, though that issue is not part of the DiBiase appeal.
The defendants in these cases have not yet filed their briefs, and it’s likely to be months before the appeals court hears arguments on the cases.
Absent from the appeal briefs was any mention of whether Dale Cendali, a prominent outside copyright attorney for Righthaven, had participated in writing them.
Cendali had been recruited earlier this year to assist Righthaven in some other high profile cases that remain open.
A request for comment on Cendali’s status was placed with Righthaven
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