Las Vegas copyright litigator Righthaven LLC is complaining that one of its many legal foes is trying to deprive Righthaven of its due process rights.
While Righthaven is often accused of abusing the legal system by filing frivolous lawsuits with dubious legal claims and then coercing defendants into settling, Righthaven insists its lawsuits over Las Vegas Review-Journal and Denver Post material are necessary to deter rampant online infringement of content from those newspapers.
The company has filed 275 lawsuits over newspaper content since March 2010 and is now trying to revive its litigation campaign, which has been stalled by dismissals based on its lack of standing to sue over R-J content and threats that its Denver Post lawsuits will be dismissed for the same reason.
In a court filing in Denver on Wednesday, Righthaven asked U.S. District Judge John Kane to uphold its right to sue over Post material and it responded to friend of the court briefs filed by Righthaven foes the Electronic Frontier Foundation (EFF) and Citizens Against Litigation Abuse.
The EFF and its attorneys are responsible for several Righthaven lawsuit dismissals over R-J content after they became the first to convince a Nevada judge the suits were based on a flawed copyright lawsuit contract between Righthaven and R-J owner Stephens Media LLC.
The problem with the contract, the EFF said, is that it left the R-J in control of the material Righthaven was suing over. That’s not allowed under case law, which requires copyright plaintiffs to have exclusive rights in the material they sue over.
The EFF and other Righthaven critics say Righthaven’s contract with Denver Post owner MediaNews Group Inc. is similarly flawed.
EFF attorneys, in an Aug. 2 brief, said the suits over Denver Post material are based on “sham” copyright assignments and they asked Kane to dismiss pending Righthaven cases with prejudice or on a summary judgment basis.
That way defendants can’t be sued again over the same alleged infringements, should Righthaven revise the lawsuit contract.
Dismissal with prejudice or on a summary judgment basis also would bolster the chances that defendants can try to collect their legal fees from Righthaven. With several of the Denver Post cases heavily litigated, those fees by now are easily in the hundreds of thousands of dollars.
The EFF said the summary judgment route is favored by the 10th U.S. Circuit Court of Appeals, which includes Colorado.
Righthaven responded Wednesday that it’s unprecedented for a friend of the court to ask that a motion for dismissal be converted to one for summary judgment, which it said requires the application of different legal analysis standards.
Righthaven attorney Shawn Mangano wrote in his brief that this request was particularly interesting coming from the EFF, which works to protect free expression in the digital world.
“In a stroke of legal irony, an organization that claims to protect free expression seeks to unquestionably deny Righthaven the fundamental right of procedural due process by asking the court to enter summary judgment when this ground for relief was not requested in defendant’s motion,” Mangano’s brief said. “EFF disregards the fundamental right of procedural due process because it seeks to advance its organizational goal of obtaining a decision from this court that can qualify as an adjudication on the merits so that it can attempt to bar future Righthaven actions.”
Righthaven also complained that the EFF is arguing that the dismissals of its R-J cases — totaling seven so far — are binding on Righthaven under the doctrine of “collateral estoppel” and that’s another reason the Denver Post cases should be dismissed.
Collateral estoppel, also known as “issue preclusion,” prevents re-litigation of issues already resolved in prior suits on different claims.
Righthaven responded Wednesday that the Nevada cases were not dismissed on the merits and that the Denver Post lawsuits are based on a different lawsuit contract, so collateral estoppel doesn’t apply.
“Quite frankly, EFF is inviting the court to commit reversible error in order to achieve its overall strategic objective in its litigation campaign against Righthaven,” Mangano wrote in his brief.
Righthaven also disputed arguments by Citizens Against Litigation Abuse (CALA) that its litigation campaign involves the unauthorized practice of law.
CALA says that since Righthaven is not a law firm and has no real interest in any dispute between the Denver Post and the R-J and alleged infringers of their material, Righthaven’s copyright assignments are really impermissible contingent-fee lawsuit representation contracts.
One of the federal judges handling Righthaven cases in Las Vegas, Roger Hunt, has twice suggested Righthaven is involved in the unauthorized practice of law — and he’s threatening to ask the Nevada Supreme Court to weigh in on the issue.
Righthaven disputed such arguments in its filing Wednesday in Denver, saying 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 brief said.
Kane hasn’t indicated when he’ll rule on Righthaven’s standing to sue over Denver Post material, which would likely affect 33 open cases there.
Separately, Righthaven in-house attorney Steven Ganim in Las Vegas, who had been active in the Denver Post cases, has withdrawn from representing Righthaven.
Ganim notified the court on Sunday he had been laid off by Righthaven.