Top copyright litigator withdraws from Righthaven cases
21 March 2012
Dale Cendali, one of the top U.S. copyright attorneys, made it clear Wednesday that she’s no longer representing struggling copyright enforcement company Righthaven LLC of Las Vegas.
As a company — not a law firm — Righthaven tried to profit with copyright infringement litigation involving 275 no-warning lawsuits filed during the past two years.
But its efforts backfired and the company appears to have collapsed as it’s no longer filing required court briefs or attending hearings.
Cendali, who signed on to represent Righthaven in a couple of cases last year as it struggled to beat back challenges to its lawsuits, hasn’t been heard from in months in relation to Righthaven.
Her name finally came up last week when a Righthaven appeal for which she is listed as one of the Righthaven attorneys of record was dismissed by the Ninth U.S. Circuit Court of Appeals because Righthaven missed deadlines to file the required opening brief.
That dismissal is just one of a snowballing series of legal setbacks in which Righthaven has been found to lack standing to file lawsuits, its assets have been stripped away for nonpayment of creditors and it faces the possibility of being found in contempt of court for noncompliance with a court order.
In requests to withdraw from two cases filed in federal court in Las Vegas on Wednesday, Cendali said that she and her law firm, Kirkland & Ellis LLP in New York, had been hired solely to represent Righthaven for certain issues last year.
One issue was an order by U.S. District Judge James Mahan for Righthaven to show cause why its suit against the Pahrump Life blog should not be dismissed for lack of standing by Righthaven.
The suit eventually was dismissed — Mahan is still considering whether the dismissal should be with or without prejudice. A ''with prejudice'' ruling could subject Righthaven to having to pay the defendant’s legal fees.
Another issue Cendali participated in was an attempt by Righthaven to reinsert itself into its disastrous lawsuit against the Democratic Underground after Righthaven had been removed from the case for lack of standing.
Cendali said in Wednesday’s court filings that her work was completed on both of these issues last summer and that she was told at that time that Shawn Mangano, another outside attorney for Righthaven, would handle the rest of the cases by himself.
Mangano, however, has not been heard from in weeks in relation to Righthaven. He hasn't officially withdrawn from the Righthaven cases, but he also hasn't appeared at the two most recent Righthaven hearings in Las Vegas. Defense attorneys and court clerks say their attempts to reach him by phone have been unsuccessful, and Righthaven was unrepresented during those hearings.
With Righthaven claiming for months it couldn't afford to pay creditors, it appeared one or more of Righthaven's investors had paid Mangano by pumping new capital into the company for that purpose. It's unclear how much Righthaven may owe its outside attorneys, including Mangano and Cendali.
''Save for the initial retainer provided by Righthaven, Righthaven has not paid any of the legal fees due to my firm,'' Cendali added in Wednesday’s court filings.
Righthaven’s hiring of Cendali last year made waves because Cendali is well known in legal circles for representing content creators and owners like Harry Potter author J.K. Rowling and The Associated Press.
Cendali made news in the Righthaven cases in June when she wrote a brief likening the Righthaven copyright lawsuits to trademark and patent lawsuits.
Cendali wrote in the brief that just as patent lawsuits are typically filed by ''nonpracticing entities,'' or companies that exist solely to sue over patent infringements, Righthaven’s model of obtaining newspaper copyrights strictly for lawsuit purposes was appropriate.
Defense attorneys disputed that theory, saying there’s a dramatic difference between patents, trademarks and copyrights — most notably because lawsuits alleging copyright infringement have First Amendment implications as was seen repeatedly in the Righthaven cases.
In four of the Righthaven lawsuits, judges found the defendants were protected by the doctrine of fair use — which has free speech implications — in their copying and re-posting information from the Las Vegas Review-Journal.
In the end, judges didn’t buy Cendali’s patent and trademark analogy and continued dismissing Righthaven lawsuits because of Righthaven’s lack of standing and because of their refusal to allow Righthaven to amend its lawsuits to create standing.
In all, eight judges in three states have now dismissed Righthaven lawsuits because — under its copyright assignments from the Review-Journal and the Denver Post — the newspapers maintained control of the material Righthaven was suing over despite Righthaven’s claims it owned that material.
While Cendali’s June petition to practice in the Democratic Underground and Pahrump Life cases said she’d been retained by both Righthaven and Stephens Media LLC, owner of the Review-Journal, it appears Cendali never filed any briefs on behalf of Stephens Media.
Stephens Media, represented by the Las Vegas law firm Campbell & Williams, is now preparing to deal with what is expected to be a hefty demand for legal fees from the Democratic Underground against Righthaven and Stephens Media.
The 2010 Righthaven lawsuit against the Democratic Underground and the Democratic Underground’s counterclaim against Stephens Media LLC was the most extensively-litigated Righthaven case.
It yielded three key rulings:
• A judge for the first time in this case found Righthaven lacked standing to sue.
• A judge in this case fined Righthaven $5,000 for misleading the court about its lawsuits.
• This was the fourth Righthaven case in which a defendant was found to have been protected by fair use in the posting of Review-Journal material on its website.
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