A federal judge in Las Vegas on Friday unsealed the agreement for prosecuting copyright infringement lawsuits between Righthaven LLC and Las Vegas Review-Journal owner Stephens Media LLC.
As expected, the Jan. 18, 2010, Strategic Alliance Agreement shows the previously-confidential deal calls for Stephens Media to receive a cut of Righthaven's lawsuit proceeds, minus costs. That cut is 50 percent.
Over the objections of Righthaven and Stephens Media, Chief U.S. District Judge for Nevada Roger Hunt issued an order allowing the public to see the agreement allowing for copyrights from Stephens Media to be assigned to Righthaven for lawsuit purposes.
Laurence Pulgram, an attorney representing Righthaven defendant the Democratic Underground in the case, said this agreement shows Righthaven only obtains limited rights -- and this discovery may undermine all of Righthaven's lawsuits over Review-Journal material.
"By rejecting Righthaven's and Stephens Media's efforts to keep the document secret, Chief Judge Hunt has allowed the various victims of Righthaven's campaign of intimidation to know the truth. The document in question, a Strategic Alliance Agreement, gave Righthaven the right to sue on Stephens' Media's copyrights, but no other rights in the copyrights, which we believe will defeat Righthaven's standing to sue any of those it has targeted," said Pulgram, an attorney associated with the Electronic Frontier Foundation with the San Francisco law firm Fenwick & West LLP.
Defense attorneys fighting Righthaven say that in order to sue, Righthaven must have complete ownership of the copyrights. They say that providing Righthaven only rights to sue undermines the purposes of the Copyright Act.
"Righthaven’s practices create a secondary commodities market for copyrights, or exclusive subsidiary rights in copyrights, to be used only in suing others who may have valid defenses, but cannot afford to raise them – or engage counsel whatsoever," said a filing Thursday by attorneys in another case representing the Media Bloggers Association.
"This is inimical to the purpose of the Copyright Act, which was intended to protect the intellectual investments of creators, rather than creating lawsuit mills that use registered copyrights – only after their infringement was discovered – as a source of income, rather than a shield against others’ misappropriation."
"As many defendants in Righthaven actions have argued, Righthaven does not truly own the copyrights it sues over,'' Marc John Randazza, one of the attorneys for the Media Bloggers Association, said Friday in a blog post titled in part "Does the House of Cards Collapse?"
He said Righthaven's lawsuits seem to run afoul of case law.
Righthaven has disputed this argument about its lawsuits.
It's unknown if Righthaven's lawsuit arrangement with the Denver Post provides only limited rights. If so, defense attorneys may argue that deal undermines those suits as well.
Righthaven's 264 lawsuits filed since March 2010 over Review-Journal and Denver Post material have attracted attention in media and legal circles nationwide, as they're a departure from the usual practice in the newspaper industry of asking that infringing online content be taken down before resorting to litigation.
Hunt's ruling came Friday in a Righthaven lawsuit against the Democratic Underground over the partial posting of a Review-Journal story -- and a Democratic Underground counterclaim against Righthaven and Stephens Media.