Righthaven trying again to avoid paying prevailing defendants’ fees

It’s an effort already rejected by one judge, but Righthaven LLC of Las Vegas is trying again to avoid paying the legal fees of defendants that defeat Righthaven in court.

In court filings Saturday in Denver, Righthaven asked Senior U.S. District Judge John Kane to put six of its copyright infringement cases there on hold, rather than dismissing them on a summary judgment basis.

That way, Righthaven said, it won’t have to pay the defendants’ legal fees and it could resume prosecution of the cases if the 10th U.S. Circuit Court of Appeals overturns Kane and finds Righthaven had standing to sue over Denver Post content in Colorado’s federal court.

A flurry of filings by Righthaven in 33 open Colorado cases on Friday and Saturday came after Kane on Sept. 27 ruled in a 34th case that Righthaven lacked standing to sue Leland Wolf of the It Makes Sense Blog.

The Sept. 27 ruling against Righthaven was just the latest setback in its litigation campaign that involved the filing of 275 copyright infringement lawsuits since March 2010 — with Righthaven then hit with three fair-use defeats and rulings by five federal judges that it lacked standing to sue in Nevada and Colorado.

In his Sept. 27 ruling, Kane told Righthaven to show cause why the other 33 suits there should not be dismissed on a summary judgment basis as the cases all were based on Righthaven’s now-expired lawsuit contract with MediaNews Group Inc., owner of the Denver Post.

Kane found that under that contract, Righthaven didn’t control the copyright it claimed to own and therefore it didn’t have standing to sue. The copyright covered a Post TSA pat-down photo.

In filings on Friday in 27 of the open cases, Righthaven filed voluntary notices of dismissal without prejudice, which would give Righthaven the right to sue again over the same alleged infringements if its standing to sue is revived.

Kane hasn’t indicated if he’ll allow Righthaven to close the cases in that fashion and some defense attorneys have said they may challenge Righthaven’s dismissal attempts so their clients don’t have to worry about getting sued again.

Righthaven insists that under federal court rules, it can dismiss those cases with no action by Kane since the defendants — even though some have attorneys — haven’t filed answers to Righthaven’s lawsuits.

In six more of the open cases, where defendants had filed answers and in some cases counterclaims, Righthaven argued in court filings Saturday that Kane should stay them — or dismiss them without prejudice — rather than close them on summary judgment.

A summary judgment is a final ruling on the merits of a case.

In its court filings, Righthaven said Kane erred in his ruling in favor of Wolf and then erred again in awarding Wolf his attorney’s fees.

Righthaven claimed that once Kane found subject matter jurisdiction was lacking in the Wolf case — that Righthaven lacked standing to sue — he should have dismissed the lawsuit without prejudice.

Such a dismissal would mean “an adjudication on the merits has not been obtained” and the defendant can’t obtain attorney’s fees unless they are issued as a sanction, Righthaven said in its filing.

Kane hasn’t indicated when or how he’ll rule on this argument by Righthaven, but it’s an argument that was rejected by U.S. District Judge Philip Pro in Las Vegas when he awarded $34,045 in attorney’s fees to Righthaven defendant Wayne Hoehn on Aug. 15.

Pro on June 20 dismissed Righthaven’s suit against Hoehn, a Kentucky message board poster, finding Righthaven didn’t have standing to sue him and even if it did, Hoehn was protected by the fair-use doctrine in posting an entire Las Vegas Review-Journal column on a sports betting website message board.

Righthaven’s lack of standing was due to the R-J maintaining control of the column despite Righthaven’s claims of ownership, Pro found.

Righthaven, however, is asking the 9th U.S. Circuit Court of Appeals to overturn both the dismissal of the lawsuit and the attorney’s fee award for Hoehn.

Pro’s ruling on the attorney’s fee issue said that despite arguments to the contrary by Righthaven, both the Federal Rules of Civil Procedure and the federal Copyright Act permit the recovery of attorney’s fees and costs for a prevailing party.

Such fee awards could get expensive for Righthaven given the six Colorado cases at issue and a pending fee request in Nevada by prevailing Righthaven defendant Thomas DiBiase for $199,250.

DiBiase’s potential fee award will likely eventually be dwarfed by one from attorneys for the Democratic Underground — the defendant in the main case in Nevada where it was shown Righthaven lacked standing to sue despite its claim of copyright ownership.

Righthaven has previously warned the fee awards could push it into bankruptcy and Pro on Sept. 28 allowed Righthaven to post a bond rather than pay Hoehn’s fees while it appeals.

Another Nevada Righthaven defendant, British website figure Garry Newman of facepunch.com, in the meantime is celebrating his victory over Righthaven — but is also wondering if he’ll be able to recover his $30,000 in legal fees.

U.S. District Judge James Mahan on Friday dismissed Righthaven’s suit against Newman because of Righthaven’s lack of standing to sue him over an R-J Vdara hotel “death ray” story.

“So we won our legal case against Righthaven!” Newman wrote in a blog post.

“This was kind of expected given everything that’s gone on in the last few months with Righthaven — but it’s good to finally have an end to the legal bills and not have this thing hanging in the air anymore.

“Now we get to decide whether to go after recovering attorney fees. I’m sure our attorneys would love us to (either way they win), but I’m doubtful. These guys know the system, they know how to play it, and they have an exit strategy,” Newman wrote. “Great for the attorneys, not so great for everyone else.”

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