9th Circuit rejects Righthaven bid to block auction of copyrights
10 January 2012
Copyright lawsuit filer Righthaven LLC of Las Vegas is now 0-2 when it comes to urgent appeals to the 9th U.S. Circuit Court of Appeals in San Francisco.
The court, without much comment, on Tuesday rejected Righthaven’s emergency motion of Dec. 20 in which it asked the court to block the planned auction of its intellectual property including its trademark and copyrights.
The court simply denied the motion and cited case law — as it did with an earlier “urgent motion” it rejected on Oct. 19.
The October ruling denied Righthaven’s request that attorneys for Wayne Hoehn — who was sued by Righthaven for copyright infringement but succeeded in getting the suit dismissed — be blocked from executing their judgment against Righthaven for $34,045 in legal fees.
The Hoehn judgment against Righthaven has now grown to $63,720 — and appears to be growing with every court motion his attorneys file and every hearing they attend in efforts to get Righthaven to pay up.
The appeals court will now move on to the merits of Righthaven’s appeal of the dismissal of its lawsuit against Hoehn and Hoehn’s award of attorney’s fees as the prevailing party in the lawsuit.
In rejecting the urgent motions to block execution of Hoehn’s judgment and the copyright auction, the appeals court on Tuesday and in October cited case law covering whether the applicant to stay a judgment has made a strong showing that is likely to succeed on the merits; whether the applicant will be irreparably injured absent a stay; whether issuance of the stay will substantially injure the other parties interested in the proceeding and where the public interest lies.
While not mentioned in the ruling, attorneys for Hoehn have noted Righthaven could avoid its current predicament by simply obtaining a bond to guarantee payment of their fees should they prevail in the Hoehn appeals.
Righthaven, however, has said it’s been unable to obtain a bond. The company has also said it’s out of cash and can’t pay Hoehn’s judgment — though observers have noted it appears to have a source of funding to pay its continuing legal expenses.
Tuesday’s ruling is just the latest episode in what is becoming a convoluted debate over whether Righthaven can sign over federal copyright registrations to copyrights that judges have ruled Righthaven does not own.
Righthaven, in appeals, maintains the judges were wrong to deny its copyright ownership claims. The receiver trying to auction the 278 copyrights has said Righthaven needs to sign them over and any buyer at auction will be warned they are being sold as-is with no warranty as to their enforceability.
Tuesday’s ruling would seem to present U.S. District Judge Philip Pro in Las Vegas with some decisions to make about Righthaven. Pro is the judge who threw out Righthaven’s lawsuit claiming Hoehn infringed on a copyright when he posted an entire Las Vegas Review-Journal column on a sports-betting website message board without the R-J’s approval.
Pending before Pro are motions from Lara Pearson, the court-appointed receiver who is seeking guidance from the judge after Righthaven balked at transferring the copyrights to the receiver for auction, and motions for and against requiring U.S. Marshals to bring Righthaven CEO Steven Gibson into court so he can sign over the copyrights.
The receiver has already auctioned Righthaven’s website domain name for $3,300. That and money raised by auctioning the copyrights would help satisfy some of Hoehn’s claim against Righthaven.
A message for comment was placed with Righthaven Tuesday on the 9th Circuit’s decision against it.
Righthaven is the copyright lawsuit filer that partnered with the Review-Journal and the Denver Post to file 275 no-warning infringement lawsuits since March 2010.
Since then it has been struggling after judges ordered it to pay $216,335 in fees to defendants who defeated Righthaven in court.
Judges in Nevada and Colorado have found Righthaven lacked standing to sue because the newspapers maintained control of the material Righthaven claimed to own; while in four cases defendants were protected by the doctrine of fair use in posting Review-Journal material online without authorization.
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