Judge again suggests Righthaven is practicing law without a license

A federal judge today suggested for a second time that Las Vegas copyright lawsuit filer Righthaven LLC has been involved in the unauthorized practice of law.

U.S. District Judge Roger Hunt made the suggestion in an order in which he denied Righthaven’s request to intervene in a case in which it was removed June 14 for lack of standing. The case is one of 275 lawsuits Righthaven has initiated since March 2010 alleging material from the Las Vegas Review-Journal and the Denver Post has been infringed on by websites, bloggers and message board posters.

The case at issue Wednesday is the Righthaven lawsuit against the Democratic Underground, which remains active despite Righthaven’s dismissal from the suit so the Democratic Underground can pursue its counterclaim against Stephens Media LLC, owner of the Review-Journal.

Righthaven claims that under its twice-amended lawsuit contract with Stephens Media, it’s the sole owner of the copyright at issue in the Democratic Underground case. The copyright is for a story on former U.S. Senate candidate Sharron Angle.

Righthaven wants to intervene in the case to protect its interests. Democratic Underground attorneys, however, say Stephens Media has always been the true copyright holder and Righthaven’s lawsuit and its effort to re-enter the case are a sham.

"The court is dubious as to whether Righthaven can essentially create standing in the middle of a case so as to either prosecute the case independently or intervene. Further, the court questions whether Righthaven can even have a legitimate interest under any agreement (no matter the rights purportedly transferred) because Stephens Media and Righthaven’s arrangement seems very much like a contingency fee arrangement with an entity unauthorized to practice law," Hunt wrote in his order Wednesday.

"The court notes that it considered certifying the question of whether Righthaven is engaged in the unauthorized practice of law to the Nevada Supreme Court. Ultimately, the court chose not to solely because that issue is not dispositive of this application because Stephens Media will adequately represent Righthaven’s theoretical interests and the application is untimely. However, the court may yet certify the question in a separate case," Hunt’s order said.

By "certifying" a question to the Nevada Supreme Court on this issue of state law, Hunt would be asking that court for an advisory opinion on whether Righthaven is practicing law without a license. Hunt and other judges could then use that opinion in future rulings in Righthaven cases.

This is the second time Hunt has raised the practicing law without a license concern.

As Hunt put it Wednesday, case law in this field is about "assignment-lawsuit-kickback business arrangements," though he didn’t rule on whether that’s what Righthaven has been doing.

Critics say copyright assignments Righthaven obtains from the R-J and the Post for lawsuit purposes are improper contingency-fee lawsuit arrangements – allegedly improper because Righthaven is not a law firm

During a July 14 hearing, Hunt said: "The arrangement between Righthaven and Stephens Media is nothing more, nor less, than a law firm — which incidentally I don’t think is licensed to practice law in this state — with a contingent fee agreement masquerading as a company.”

Righthaven has disputed allegations it’s involved in the unauthorized practice of law. In a separate case on Wednesday in Denver, Righthaven said in a court brief it’s a legitimate plaintiff that goes to court, represented by attorneys, to protect its property rights.

"Here, Righthaven has been assigned all right, title and interest in and to the work (Denver Post content) along with the right to seek redress for past, present and future infringements. An assignment transfers all rights, title and interest in and to the assigned property," the Denver brief said.

The State Bar of Nevada for months has been looking into complaints about Righthaven, and it's believed the unauthorized practice of law is one of those allegations it's been asked to act on. A spokesman on Wednesday said the bar, which regulates attorneys, has not yet acted one way or the other on the Righthaven complaints.

As for Righthaven’s request that it intervene in the Las Vegas case against the Democratic Underground it had been removed from, Hunt found that Stephens Media "will adequately represent any interest Righthaven may or may not have."

Hunt on Wednesday wrote in his ruling he chose not rule on Righthaven’s current ownership claim, in part because he said it was untimely.

"In fact, the reason Righthaven now seeks to intervene is to circumvent the court’s June 14 order by creating standing and rights after the fact. This is improper and does not make the application timely," Hunt wrote.

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  1. I just re-read the Righthaven agreement with MediaNews. It is essentially the same as the original SAA with Stephens Media in spirit, but has been reorganized.

    Besides having the a clause that clearly shows that RH has no rights to exploit a work in any fashion other than through litigation (Terms and Conditions, Section 6) it also one that says RH is authorized to act as attorney-in-fact for MediaNews (T&C, Section 9.)

    It also seems that this agreement goes much further to protect RH from damages with an explicit hold-harmless clause as well as others basically saying even if RH screws up RH can only be held liable, if at all, to $1000.

    In short, this is a contract that I would never have signed given the terms. And I have little doubt that MediaNews wishes they never had.

    I think Judge Kane in Colorado is waiting on Judge Hunt to make a final ruling in the Democratic Underground case before landing on Righthaven like a ton of bricks. And if Kane does that, then RH, and possibly Gibson and others personally, will be faced with a real problem from the South Carolina actions which could involve a criminal complaint.