Las Vegas copyright enforcement company Righthaven LLC on Thursday said a judge in Colorado was wrong to strike its commentary from a recent court filing, and Righthaven refiled the commentary at issue.
In dismissing its lawsuit alleging copyright infringement on Sunday against autistic North Carolina blogger Brian D. Hill, Righthaven included language in the dismissal notice critical of Hill’s attorneys and warning Hill and others not to infringe on its copyrights.
Senior U.S. District Judge John L. Kane, in what observers said was an unusual order, then struck the commentary from the court record, calling it “immaterial and impertinent.”
Earlier in the case, Kane had criticized Righthaven’s business model, suggesting it was using the court system to force defendants into settlements.
On Thursday, Righthaven refiled the dismissal motion against Hill, this time specifying it was with prejudice, meaning Righthaven can’t sue Hill again over the alleged infringement involving a Denver Post TSA pat-down photo.
In Thursday’s filing, Righthaven refiled the commentary Kane had ordered removed from the record on Monday.
“Righthaven...wishes to stress that the amended notice and its contents are not being filed as an affront to this court or its prior decision to strike certain contents of the notice of dismissal,” attorneys for Righthaven wrote in Thursday’s filing. “Righthaven simply maintains, as any advocate would because of the need to clarify or otherwise modify that its prior submission was to be with prejudice, that the court improperly struck the contents from its prior submission.”
Righthaven in its filing cited case law it says shows the filing at issue wasn’t something that the judge could edit.
Judges can only strike such commentary from “pleadings,” such as complaints and answers to complaints, not “filings,” like notices of dismissal, Righthaven attorneys wrote in Thursday’s filing.
The amended filing reiterated the criticism of Hill’s attorneys, said Righthaven didn’t know of Hill’s disability when it sued him and charged: “Defendant and his counsel wish to prolong these proceedings so that they can continue to use this case as a means for unjustly attacking Righthaven and its copyright enforcement efforts.”
“While the defendant may believe the notice of dismissal, as clarified or modified by this amended notice of dismissal, evidences his authorization to misappropriate copyright protected material in the course of his Internet-related conduct, he can continue to do so at his own peril,” Thursday’s filing said.
“Others observing these proceedings should so likewise heed this advice because the notice of dismissal, as clarified or modified by this amended notice of dismissal, in no way exonerates any other defendant in any other Righthaven action for stealing copyright protected material and republishing such material without consent,” said the filing by Righthaven attorneys Shawn Mangano and Steven Ganim.
Separately, Kane filed an order saying he has jurisdiction over whether Righthaven should pay Hill’s attorney’s fees. He ordered both sides to file briefs on the issue and set a May hearing.
Separately, in one of its Nevada cases a federal judge rejected arguments by Righthaven that the Media Bloggers Association should not be allowed to appear as a friend of the court in the case of a defaulting defendant.
In that case, over a Las Vegas Review-Journal story, Righthaven sought a default judgment of $150,000, $1,850 in attorney’s fees and costs and control of the defendant’s website domain name.
In seeking to intervene, attorneys for the bloggers said those demands were out of line considering the alleged infringement and Righthaven’s no-warning lawsuit procedure, calling it a get-rich-quick scheme. They said Righthaven deserved minimal, if any damages.
Righthaven said the bloggers’ group wasn’t a friend of the court but rather was biased against Righthaven.
U.S. District Judge Kent Dawson ruled in favor of the bloggers Thursday, allowing them to file their “amicus” friend of the court brief and setting a schedule for Righthaven to respond to that brief.