A recent series of legal rulings have gone against copyright enforcer Righthaven LLC of Las Vegas in its lengthy efforts to stop the reposting or citing of various newspaper articles. Despite the findings that Righthaven lacks the standing to sue over the alleged copyright infringements, the company continues to pursue claims against individual bloggers on that basis.
Just weeks apart in June and July 2011, four judges in Nevada held that Righthaven could not bring copyright lawsuits involving material appearing in the Las Vegas Review-Journal and Denver Post. Since March 2010 Righthaven has brought hundreds of suits over online copyright violations with offers to end the litigation for a large cash settlement.
Claim of having authority to sue for newspaper copyright infringement
All along the company’s contention has been that Stephens Media, publisher of the Las Vegas Review-Journal, and Media News Group, publisher of the Denver Post, transferred to it copyright enforcement authority.
“Since the right to sue is not one of the exclusive rights [under copyright law], transfer solely of the right to sue does not confer standing on the assignee,” Nevada U.S. District Court Judge Kent Dawson wrote.
In a separate ruling in another Righthaven copyright suit, Nevada U.S. District Judge James Mahan held the company lacked standing to sue under its copyright assignment for the case as part of its contract with Stephens Media. Two other federal judges in the state--Nevada District Court Judges Philip Pro and Federal Chief Justice Roger Hunt of the District of Nevada--dismissed similar Righaven suits in reaching the same conclusion.
In one of the most hard-fought cases, in a suit brought against Democratic Underground, a liberal political news site, Hunt ordered Righthaven to disclose its contract with Stephens Media. The judge found the copyright assignment was fraudulent and that Righthaven had simply agreed to undertake the copyright claim for the Las Vegas Review-Journal in return for a portion of any settlement amount obtained.
“The court concluded its opinion by suggesting that Righthaven may have made multiple misrepresentations in this case, as well as in the roughly 200 other Righthaven cases filed in the District of Nevada. Specifically, the court was perturbed by Righthaven’s failure to include Stephens Media in its Certificate of Interested Parties that accompanied its complaint,” Tamlin H. Bason wrote in “Righthaven Has Insufficient Rights to Sue, Dismissed From Case, Could Face Sanctions,” in the June 17, 2011 Daily Report for Executives.
Lack of actual copyright to newspaper content in contract
The reasoning for holding that Righthaven cannot sue is it did not technically have the copyright to the newspaper content because its agreement with Stephens only transferred the right to sue, not any of the rights specified under the Copyright Act. Copyright law requires plaintiffs in infringement cases to have exclusive rights to the material they are suing over.
“Righthaven’s tactics were controversial from its first cases because the company sued small publishers, bloggers and nonprofits -- many of whom operated non-commercial sites -- without first asking them to take down the material,” Wendy Davis said in “Righthaven Not Entitled To Sue For Copyright Infringement,” June 15, 2011 in Online Media Daily. “Many of the defendants linked back to the original work and credited the newspapers. In one case, Righthaven sued a publisher who served as the source of a Review-Journal [article] because he reposted it on his own blog.”
One of the highest profile cases Righthaven brought was against conservative blogger Matt Drudge for unauthorized use of a photo of a Transportation Security Administration (TSA) airport screener on his site that had appeared in the Denver Post. That suit was later settled and more than 100 other sites have reached confidential settlements with Righthaven.
Contending amended operating agreement now in force
But even in cases that have been dismissed, Righthaven maintains it doesn’t have to pay the defendant’s legal fees. The firm is pressing forward on some appeals as part of the changes made to its original contract with Stephens Media, and now insists it has full ownership over the newspaper copyrights for which it has sued. Righthaven also argues those revisions apply retroactively to past lawsuits.
Righthaven CEO Steve Gibson stated that the new agreement between his firm and Stephens Media would enable Righthaven to bring future copyright actions, and continue to sue those whose cases courts had already dismissed.
Critics have taken strong issue and insist that any future filings in this regard have no more validity than the prior suits which were thrown out.
The issue of fair use also has come up as a defense by those sued who said that reposting even a full article could be justified. In a June 2011 ruling, Judge Pro upheld that defense in a case involving a Kentucky resident who posted an entire Las Vegas Review-Journal column about a sports website discussion board.
Righthaven attorneys point out that some judges have declined to rule that the company can’t proceed with further litigation based on citing the amended agreement to claim it does have standing to sue. Some Righthaven defendants have vowed to sue the company for bringing fraudulent copyright suits. However, it will most likely take future legal rulings to decide the company’s current ability to sue.
Sources
- David Kravets, “Judge Fines Righthaven $5,000, July 15, 2011, Wired
- Steve Green, “Judge rules Righthaven lacks standing to sue, threatens sanctions over misrepresentations,” June 14, 2011, vegasinc.com
- Joe Mullin, “Judge: Righthaven Has No Standing to File Lawsuits--Case Dismissed,” June 14, 2011, paidContent.org
- Tamlin H. Bason, “Righthaven Has Insufficient Rights to Sue, Dismissed From Case, Could Face Sanctions,” June 17, 2011, Daily Report for Executives, Bureau of National Affairs
- Wendy Davis, “Righthaven Not Entitled To Sue for Copyright Infringement,” June 15, 2011, Online Media Daily
- Jeff Bercovici, “Copyright Vigilante Righthaven Will Fight on After Ruling,” June 15, 2011, Forbes
John Seidenberg - John Seidenberg has worked on newspapers, newsletters, radio news, and produced specialized news publications as well as freelance ...
