Legal attacks under way in advance of first Righthaven trial
25 October 2011
The first trial in a Righthaven LLC copyright infringement lawsuit is set for Nov. 7, causing Righthaven and an adversary to now blame each other for not resolving the suit prior to trial.
U.S. District Judge Kent Dawson in Las Vegas on June 1 set the jury trial in Righthaven’s lawsuit against Kevin Kelleher of Raleigh, N.C., who has a website about public address announcers.
He was accused of posting on the site, without authorization, a Las Vegas Review-Journal story about UNLV announcer Dick Calvert being named to the Southern Nevada Sports Hall of Fame.
Righthaven, as is its practice, obtained the copyright to the story from the R-J and then in July 2010 hit Kelleher with one of the 275 no-warning lawsuits it has filed since March 2010 alleging infringements of Review-Journal and Denver Post material.
Since July 2010, Righthaven’s lawsuit campaign has nearly fallen apart after five judges in Nevada and Colorado found Righthaven lacked standing to sue because of faulty copyright-assignment and lawsuit contracts with the Review-Journal and the Denver Post.
A sixth judge in Nevada and a seventh judge in South Carolina are also threatening to dismiss — or recommend dismissal of — additional Righthaven lawsuits.
The problem with the copyright assignments and resulting lawsuits is that they left the newspapers in control of the material Righthaven was suing over, which isn’t allowed as Righthaven serves as a copyright plaintiff but not as a law firm representing the newspapers as clients.
Copyright plaintiffs must have exclusive rights to the material they sue over, the judges dismissing Righthaven suits ruled.
A trial for Righthaven in the Kelleher case would present multiple problems for Righthaven.
First, Righthaven has said it’s running short of cash and potentially faces bankruptcy because the shutdown of its litigation campaign due to standing problems has reduced lawsuit settlement revenue — while at the same time it’s been ordered to pay a defendants’ $34,045 in attorney’s fees or post a bond guaranteeing payment by Friday.
A trial in the Kelleher case would only add to Righthaven’s expenses as the Las Vegas company would have to pay one or more of its outside attorneys for trial preparation and to actually represent the company during the trial.
Second, the trial judge, Dawson, has already ruled in other cases that Righthaven lacks standing to sue. That would indicate Righthaven’s suit against Kelleher is a lost cause, with or without a trial, unless Righthaven can find a way to revive its standing to sue.
Facing a Nov. 1 pre-trial hearing in the case, Righthaven on Monday filed with Dawson a "Notice of Adverse Decisions Regarding Subject Matter Jurisdiction’’ informing Dawson something he likely already knows: That Dawson and three other Nevada federal judges have already dismissed Righthaven suits over R-J material because of Righthaven’s lack of standing.
Righthaven did reveal in the filing it may appeal two of the more recent dismissals of its suits against the Pahrump Life blog and against British website operator Garry Newman.
"The court may wish to issue an order to show cause so that it may rule on the presence of subject matter jurisdiction prior to conducting trial in this matter,’’ Righthaven’s filing said. "Defendant Kevin Kelleher has refused to seek adjudication of the subject matter jurisdiction issue through a request for dismissal.’’
The bottom line for Righthaven is that, while it maintains the earlier lawsuits were dismissed in error, it’s confident that based on Dawson’s record, he’ll dismiss the Kelleher case if he’s asked to do so.
That would prevent what would potentially be a costly trial for Righthaven and potentially set up another case for appeal.
Kelleher’s attorney, Andrew Dhuey in Berkeley, Calif., fired back against Righthaven on Tuesday with his own brief accusing Righthaven of misrepresenting Kelleher’s actions to Dawson.
"Righthaven appears to be inviting the court to commit what Righthaven would contend is legal error by dismissing this action,’’ Dhuey wrote in his filing, adding that during an Oct. 7 telephone conference with a magistrate judge, Righthaven had represented it would dismiss the lawsuit.
"In yet another bizarre element to its notice, Righthaven implicitly faults Mr. Kelleher for not moving to dismiss this action,’’ Dhuey’s filing said. "Mr. Kelleher does not understand how waiting for Righthaven to do what it has repeatedly said it would do — move to dismiss this case — amounts to a `refusal’ of any sort.’’
"Mr. Kelleher is amenable to any approach the court might take to bring this odd case to a merciful end,’’ Dhuey wrote in his filing, adding Kelleher plans to seek recovery of his attorney’s fees and will move for sanctions against Righthaven for its failure to initially disclose Stephens Media LLC — owner of the Review-Journal — is an interested party in Righthaven lawsuits over R-J material as it receives a cut of lawsuit revenue.
Kelleher also will seek sanctions for Righthaven’s "counsel’s unnecessary prolonging of this action,’’ Dhuey wrote in his filing.
Righthaven has not yet responded to the Dhuey filing.
In another Righthaven case this week, defendant the Democratic Underground asked U.S. District Judge Roger Hunt to grant it summary judgment on its counterclaim against Stephens Media.
That’s the case where Righthaven was removed for lack of standing and Hunt fined Righthaven $5,000 for failing to disclose Stephens Media is an interested party in its suits as is required by local court rules.
In the motion for summary judgment, Democratic Underground attorneys with the Electronic Frontier Foundation (EFF) pointed to a column and online posts by former Review-Journal Publisher Sherman Frederick as backing up their counterclaim.
The counterclaim asserts Righthaven is a Stephens Media front company and its "sham representative’’ and that the online post that prompted the lawsuit was protected by fair use. Righthaven is 50 percent owned by the same Arkansas investors who own Stephens Media.
The Democratic Underground suit was over a post of the first four paragraphs of a 34-paragraph R-J story on then-U.S. Senate candidate Sharron Angle.
By crediting the information to the R-J and linking to the R-J story, the post likely was protected by fair use under Righthaven-created case law and, EFF attorneys said, actually did Stephens Media a favor by driving traffic to the R-J site.
The Democratic Underground filing said Stephens Media had threatened the public when Frederick warned in a column he would "send my little friend Righthaven’’ after copyright infringers to do the bidding of Stephens Media.
The Democratic Underground sees Frederick’s "little friend’’ reference as referring to the 1983 movie "Scarface’’ in which gangster Tony Montana (Al Pacino) famously introduces a rival drug lord to his "little friend’’ — an assault rifle.
The Democratic Underground filing also charged that Frederick had, allegedly without authorization, copied and pasted information from GametimeIP blogger Patrick Anderson about the Righthaven lawsuits in amounts far greater than what the Democratic Underground was sued for.
"Thus, Mr. Frederick (and his publisher, Stephens Media) copied a larger excerpt from Mr. Anderson than the excerpt at issue in this lawsuit, presumably because they thought the use was fair,’’ the Democratic Underground filing said.
To further bolster its counterclaim, the Democratic Underground noted Righthaven had filed suit even after the R-J "encourages users to share articles on at least 18 different third-party Internet resources or to email, save or print the article at no cost.’’
Stephens Media has not yet responded to this week’s filing, but in the past it has said the Righthaven lawsuits were necessary to combat a parasitic business model in which newspaper content is regularly stolen by copyright infringers.
With Righthaven already having sustained three fair use losses over more extensive online posts it sued over, the real question in the Democratic Underground case is how much money in attorney’s fees the Democratic Underground will be asking for — and whether Stephens Media, Righthaven, or both will get stuck with the tab.
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