Righthaven Archives
The first scheduled trial in a Righthaven LLC copyright infringement lawsuit was called off Tuesday so a judge could consider whether Righthaven had standing to file the suit.
Since March 2010, Las Vegas-based Righthaven has filed 275 lawsuits claiming websites, bloggers and message-board posters infringed on copyrights by posting without authorization material from the Las Vegas Review-Journal and the Denver Post.
Righthaven and R-J owner Stephens Media LLC said the no-warning suits were necessary to deter rampant online infringment of newspaper content — but critics said they were frivolous, and that Righthaven made dubious legal claims in an effort to coerce defendants into settling for a few thousand dollars apiece.
Among the suits was one filed in 2010 against Kevin Kelleher of Raleigh, N.C., who has a website about public address announcers.
He was accused of displaying on his site, without authorization, an R-J story about UNLV announcer Dick Calvert being named to the Southern Nevada Sports Hall of Fame.
Righthaven has suffered a series of legal setbacks since the suit against Kelleher was filed, with federal judges dismissing three of its suits on fair use grounds. In addition, five judges in Nevada and Colorado have ruled Righthaven lacked standing to file its suits because of flawed copyright-assignment and lawsuit contracts with the Review-Journal and the Denver Post.
The legal setbacks led to what observers called a bizarre situation in the Kelleher case, in which Righthaven said U.S. District Judge Kent Dawson should require Righthaven to show cause why its own lawsuit shouldn’t be dismissed, a result that would avert the need for a trial.
Righthaven filed the motion knowing full well Dawson would likely dismiss the lawsuit, as Dawson earlier dismissed multiple Righthaven lawsuits based on its lack of standing to sue.
But by giving the parties a chance to brief the issue before Dawson rules, a record will be created for a potential appeal, Righthaven attorney Shawn Mangano told Dawson during a pre-trial hearing Tuesday.
During the hearing, Dawson canceled a trial set for Nov. 7 and — as Righthaven suggested — issued the show cause order.
In response to a reporter's question after the hearing, Kelleher’s attorney, Andrew Dhuey of Berkeley, Calif., said it seemed unusual that he had to travel to Las Vegas for a 15-minute hearing on an issue that could have been resolved weeks ago without a court proceeding.
He has claimed Righthaven backed out of a deal to voluntarily dismiss the case — charges denied by Righthaven, which had said it was ready for trial if Dawson chose to go that route.
"Everything about Righthaven is bizarre," said Dhuey, an intellectual property attorney who is representing Kelleher on a volunteer basis because of Dhuey’s affiliation with the Electronic Frontier Foundation (EFF).
The EFF is a digital rights group based in San Francisco that has been battling Righthaven in several cases. The group and its affiliated attorneys won dismissal of key Righthaven lawsuits against the Democratic Underground and former federal prosecutor Thomas DiBiase.
Dhuey said he was confident Dawson would dismiss the suit against Kelleher. When that happens, he says, he’ll press for sanctions against Righthaven’s counsel for their failure to reveal — at the outset of the litigation — details of Righthaven’s relationship with Stephens Media.
That relationship is spelled out in a Strategic Alliance Agreement (SAA) governing the Righthaven lawsuits and the copyright assignments from Stephens Media that the lawsuits are based on. Besides participating in the Righthaven lawsuits, an affiliate of Stephens Media is a 50-percent owner of Righthaven.
Disclosure of the SAA in June of this year — well after most of the Righthaven suits were filed — caused multiple problems for Righthaven.
First, judges started dismissing Righthaven lawsuits for lack of standing because the SAA showed Stephens Media maintained control of the material Righthaven was suing for. Copyright plaintiffs must control the material they sue over, the judges ruled.
Second, Righthaven was fined $5,000 for failing to disclose — as required by local court rules — that Stephens Media is an interested party in its R-J lawsuits, as it receives a cut of Righthaven lawsuit revenue.
"The focus of the sanctions motion will be Righthaven’s concealment of the SAA," Dhuey said. "Had that been disclosed at the front end, we wouldn’t have this judicial waste."
He said that was because intellectual property attorneys representing Righthaven defendants could have quickly disposed of the suits if they had been aware of Stephens Media’s involvement — proving Righthaven’s lack of standing — at the outset.
Dhuey said the no-warning Righthaven lawsuit against his client was unfortunate, because Kelleher is a youth baseball volunteer who receives just 10 hits a day on his website — and would have removed the story at issue from his website if the R-J or Righthaven had asked him to do so.
Separately, Righthaven on Monday filed a response to a judge’s order requiring it to show cause why its lone lawsuit in South Carolina should not be dismissed.
Righthaven last year sued Tea Party leader Dana Eiser in Charleston, S.C., federal court, claiming she posted a Denver Post column on her group’s website without authorization.
Eiser’s attorneys denied the allegations and said Righthaven lacked standing to sue under its lawsuit contract with the Denver Post, which is similar to the Stephens Media contract.
Senior U.S. District Judge John L. Kane in Denver has already ruled Righthaven lacked standing to sue in Colorado’s federal court because under the Denver Post lawsuit contract, Righthaven wasn’t a proper plaintiff. Kane ruled that the Post retained control of the material Righthaven was suing over.
Eiser’s case "involves the prosecution of an accrued claim of copyright infringement that has been expressly assigned by (Denver Post owner) MediaNews Group to Righthaven together with ownership of the copyrighted work at issue," Righthaven’s filing said.
Righthaven insisted in its filing it had standing to sue, but said if the court ruled otherwise it should dismiss the lawsuit without prejudice.
A dismissal without prejudice would give Righthaven the opportunity to sue Eiser again over the same alleged infringement should its right to sue be revived by an appeals court — and would make it harder for Eiser’s attorneys to recover their legal fees.
Also Monday, Righthaven asked the 9th U.S. Circuit Court of Appeals for more time to file its opening brief in its appeal of the dismissal of its infringement lawsuit against Kentucky message board poster Wayne Hoehn.
This summer, U.S. District Judge Philip Pro in Las Vegas ruled Righthaven lacked standing to sue Hoehn and that Hoehn was protected by fair use in posting an entire Review-Journal column on a sports betting website without authorization.
Righthaven later appealed both the lawsuit dismissal and Pro’s decision awarding Hoehn his $34,045 in legal fees.
Righthaven said in its request that it missed Friday’s deadline to file the brief because of a misunderstanding with the court staff over which case it had earlier gained an extension.
The appeals court on Tuesday granted Righthaven’s request for an extension to file the brief by Nov. 28.
But the episode gave Hoehn’s attorneys another opportunity to criticize Righthaven.
"Righthaven’s inability to track its appeals before this court is not the fault of court administrators. With six appeals pending before this district — and not a single brief filed despite numerous extensions sought — it is all the more important that Righthaven diligently prosecute its appeals," said the filing by Randazza Legal Group of Las Vegas.
Attorneys for Randazza in one case are seeking sanctions against Mangano, Righthaven’s main outside attorney, and in another case are trying to have U.S. Marshals seize Righthaven’s assets to cover payment of their legal fees in the Hoehn case.