Both sides OK with stay of Colorado Righthaven cases

For once, attorneys on both sides of the Righthaven copyright infringement lawsuits agree on something.

Both sides agreed Thursday that Senior U.S. District Judge John L. Kane in Denver did the right thing in putting 35 active cases there on hold until he decides whether Righthaven has standing to sue over a Denver Post TSA pat-down photo.

Righthaven said it was supportive, even as Kane’s order threatened to undermine its litigation campaign in Colorado and may have interfered with any settlements that were in the works.

Las Vegas-based Righthaven is the copyright enforcer for the Las Vegas Review-Journal and the Denver Post. Since March 2010, it has filed 274 infringement lawsuits over material from those newspapers, naming as defendants website operators, bloggers and message-board posters from North America and Europe.

“Righthaven applauds Judge Kane’s decision,” said Shawn Mangano, a Las Vegas attorney representing Righthaven.

“His decision to do so reflects a practical and efficient response that promotes the interests of judicial economy in response to an issue directly implicating his authority to decide the cases before him,” Mangano said. “Righthaven maintains, as it has in response to similar motions brought in Nevada, that it has standing to seek redress for the copyright infringement claims at issue, which not only implicate the company’s rights to enforce protected content displayed without authorization on the Internet but which also implicates the rights of countless other businesses and individuals utilizing the Internet in commerce or otherwise in their daily activities.”

“Righthaven is committed to securing the correct decision concerning its standing to maintain its infringement claims for all pending matters whether this result is obtained at the district court level or on appeal,” said Mangano, who is already participating in appeals of two fair use losses sustained by Righthaven in cases involving Review-Journal stories.

Marc Randazza, one of the attorneys for Righthaven defendants in Nevada and Colorado, also said Kane did the right thing.

“It reflects an appropriate use of judicial economy,” Randazza said.

Kane said in his order he would focus on a case Randazza is involved in to determine if Righthaven has standing.

Righthaven’s standing to sue in Nevada over Review-Journal stories was subjected to intensified attacks after its lawsuit contract with Review-Journal owner Stephens Media LLC was unsealed.

Randazza and other attorneys say this contract shows the Nevada lawsuits are based on “sham” copyright assignments and prove Righthaven doesn’t have standing to sue because Stephens Media maintains effective control over the copyrighted material.

U.S. District Judge James Mahan in Las Vegas has said the contract doesn’t appear to give Righthaven the right to sue and has set a hearing for next month on the issue, but Righthaven disputes this interpretation of the contract.

Now, as part of the Colorado lawsuit that Kane will focus on, Randazza hopes Righthaven’s lawsuit contract with Denver Post owner MediaNews Group will be unsealed as well.

If Kane finds Righthaven doesn’t have standing to sue under the contract in the 35 Colorado suits at issue, “all the dominoes have to fall at one time,” Randazza said.

The MediaNews contract appears to be similar to the Stephens Media contract in that Righthaven gains copyrights from MediaNews, then licenses the copyrighted material back to MediaNews for its use.

That’s according to several court declarations by Sara Glines, vice president of field operations for MediaNews.

The potential unsealing of the Righthaven/MediaNews lawsuit contract would also likely be of interest to Righthaven litigants in cases over Denver Post material in Nevada and South Carolina.

In his order staying the Colorado cases Thursday, Kane explained jurisdiction — or Righthaven’s standing to sue — is at the heart of all the lawsuits there.

“It is well settled that federal courts are courts of limited jurisdiction; I may only hear those cases which have been entrusted to me under a jurisdictional grant by Congress,” Kane wrote in his order.

“Although Congress has entrusted federal courts with the statutory authority to entertain a claim of copyright infringement, my exercise of jurisdiction must also be constitutionally proper. Because Righthaven is the party seeking to invoke federal jurisdiction, it bears the burden, when jurisdiction is challenged, of establishing it is both statutorily and constitutionally proper as a matter of law,” Kane wrote.

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  1. Me thinks the end is very near for Righthaven. It seems as if the head has been cut off and heart is still beating. Just a mater of time before the lawyers at Righthaven join the other pond scum where they belong.

  2. The question turns on whether or not Righthaven has effective ownership of the copyrights.

    A careful reading of the Stephens Media agreement throws doubt on that inasmuch as RH can not do anything with a given copyright other than bring legal action or transfer it back to SM. SM retains ultimate control over all decisions, including the decision of who to sue.

    What's more, the agreement makes it very clear that RH can have no revenue result from owning the copying other than monies received from awards from legal action, which are then split 50/50 with SM.

    If the wording is the same in the agreement with MediaNews then Kane might well decide that RH does not in fact have ownership.

    That is not to say that he might not honor the intent of the agreement. But upholding the intent would say that this form of digital ambulance chasing is permissible and that would surely leave a bad taste in his mouth.

    Overall I am glad to see this issue being decided separately from those involving fair use. This will lead to better decisions later on.