Judge refuses to dismiss Righthaven suit against California real estate agent

Las Vegas copyright enforcement company Righthaven LLC received a boost this week when a federal judge refused to dismiss a lawsuit it filed against a Southern California real estate agent.

Jeffrey L. Nelson of San Clemente was hit with a lawsuit alleging copyright infringement June 30 in U.S. District Court for Nevada after an entire 17-paragraph story from the Las Vegas Review-Journal was posted on Nelson’s website, allegedly without authorization.

Righthaven is the copyright enforcement partner of the Review-Journal and the Denver Post.

A court exhibit shows the Review-Journal was not credited as the source of the story on Nelson’s online site and that it was Nelson who was listed as the author. The story covered a new Fannie Mae real estate financing program.

An attorney for Nelson, in seeking dismissal of the lawsuit, argued the Nevada court doesn’t have jurisdiction of the dispute because the defendant doesn’t live in or do business in Nevada.

Nelson has, since 2007, intermittently published news stories about the mortgage and real estate industries on his website, Nelson’s response to the Righthaven lawsuit said.

“The intent of the website was to inform individuals and entities in the real estate/residential lending occupations of occurrences pertinent to those lines of work,” Nelson’s filing said. “Nelson did not solicit business through the website, nor did Nelson derive a profit from maintaining the website.”

“Defendants do not reside in Nevada, they hold no licenses in Nevada, they pay no taxes in Nevada, they conduct no business with Nevada residents or businesses and they do not actively solicit business from native Nevadans,” said the filing by Nelson’s attorney, Jason Wiley of the Henderson law firm Woods Erickson Whitaker & Maurice LLP.

Wiley also argued the 9th U.S. Circuit Court of Appeals has found “passive” websites don’t create sufficient contacts with particular states to warrant jurisdiction by those states.

He said Nelson’s website was passive as it didn’t transact business over the Internet and there was no exchange of information involved — it simply displayed information.

U.S. District Judge Larry Hicks in Reno sided with Righthaven this week in denying the motion to dismiss.

Hicks noted in his ruling that to establish jurisdiction over the nonresident defendant, Righthaven had to show that Nelson had at least minimal contacts with Nevada “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Righthaven further had to show Nelson purposefully directed his activities at Nevada and that “the exercise of jurisdiction must comport with fair play and substantial justice — i.e., it must be reasonable.”

Righthaven showed these things, Hicks wrote, since it produced evidence that the defendant allegedly willfully infringed a copyright owned by a Nevada company.

“Furthermore, in addition to the defendants’ alleged willful copyright infringement and their knowledge that the copying of a Las Vegas Review-Journal article would produce harm in Nevada, the content of the copied article is focused on issues specifically related to Nevada and of special interest to Nevada citizens,” Hicks wrote in his ruling.

Hicks’ ruling means the litigation will proceed unless it’s settled.

The ruling shows how, based on the circumstances, some Righthaven lawsuits are stronger than others.

Among the 238 Righthaven lawsuits filed since March, Hicks has so far issued the only definitive ruling closing a contested case on the merits.

In October, he dismissed a Righthaven suit against Las Vegas real estate agent Michael Nelson on fair use grounds.

The alleged infringement in that case involved Nelson posting the first eight sentences of a 30-sentence Review-Journal real estate story.