In a move defense attorneys are already questioning, copyright lawsuit filer Righthaven LLC is asking for the right to re-file 27 of its lawsuits over Denver Post material – should its standing to sue over that material be revived by an appeals court.
Righthaven since March 2010 has filed 275 no-warning lawsuits claiming material from the Las Vegas Review-Journal and the Denver Post was infringed on by websites, bloggers and message board posters.
Righthaven says the suits were necessary to crack down on rampant online infringement of newspaper content, but critics said the suits were frivolous and asserted dubious legal claims against defendants that typically had no intent to infringe.
The litigation campaign stalled this summer after fair use defeats sustained by Righthaven as well as judges in Nevada and Colorado finding it lacked standing to sue because – despite its ownership claims – Righthaven didn’t control the copyrights it was suing over.
In Righthaven’s latest major setback, Senior U.S. District Judge John Kane in Denver on Sept. 27 ruled Righthaven lacked standing to sue Leland Wolf of the It Makes Sense Blog in Colorado’s federal court.
Kane then gave Righthaven until today to show cause why 33 more open cases there should not be thrown out on a definitive summary judgment basis.
Instead of showing cause as ordered by Kane, the company today filed voluntary dismissal notices in 27 of those suits in which the defendants had not yet filed an answer.
Righthaven’s dismissals were without prejudice, meaning Righthaven would have the right to sue over the same alleged infringements if the 10th U.S. Circuit Court of Appeals overturns Kane and finds Righthaven had standing to file the Denver Post lawsuits.
Righthaven in its dismissal filings said it is permitted to voluntarily dismiss the 27 suits because "an answer or motion for summary judgment has not been filed" – language that would seem to contradict Kane’s order of Sept. 27 ordering Righthaven to show cause on summary judgment.
A summary judgment is a final resolution of a lawsuit on the merits as opposed to a voluntary dismissal.
"Righthaven will seek review of the Wolf decision by the 10th Circuit," said the dismissal filings by Shawn Mangano of Las Vegas, an outside attorney representing Righthaven. "As such, Righthaven has filed this notice of dismissal to avoid unnecessarily multiplying the proceedings in view of the court’s decision in Wolf and in further view of its intent to seek appellate review of that decision.
"Righthaven will evaluate the propriety of pursuing its copyright infringement claims against the defendants following an adjudication of the matters presented for review to the 10th Circuit," Mangano’s filing said.
Attorneys for some of the 27 defendants affected by today’s dismissal options were weighing their options.
Steven Janiszewski, a Denver attorney representing Rachel Bjorklund in Gresham, Ore., said Righthaven had "gotten tricky" with today’s dismissal motion involving his client.
Bjorklund has a blog called Thoughts From A Conservative Mom.
She told the Las Vegas Sun in March that she was stunned to learn from the Sun at that time that she was being sued by Righthaven as neither Righthaven nor the Denver Post had contacted her.
Like most Righthaven lawsuits, the suit against Bjorklund demanded $150,000 in damages and forfeiture of her website domain name to Righthaven.
The website demand in all Righthaven lawsuits has been widely criticized by defense attorneys who say it was included in lawsuits only to coerce defendants into settling – and one of the Nevada federal judges threw it out as it’s not authorized by the Copyright Act.
The Colorado lawsuits involved a Denver Post TSA pat-down photo that had gone viral on the Internet after it was distributed to news outlets by The Associated Press – it was a photo that Bjorklund thought was part of the public domain.
Her attorney said that typically, there is no response to a voluntary notice of dismissal under federal court rules.
"But this is not a typical case," Janiszewski said, pointing to Kane’s order for Righthaven to show cause why the cases should not be closed on a summary judgment basis.
"Righthaven has not done that, directly. Instead, Righthaven has gotten tricky -- it tried to outflank Judge Kane by dismissing the case out from under him so that he cannot enter summary judgment," Janiszewski said.
"With any other judge, that gambit might work, because, technically, a plaintiff can dismiss its case on notice where an answer or motion for summary judgment has not been filed.
"We'll see if it works on Judge Kane. Mrs. Bjorklund sees this as an issue between Righthaven and Judge Kane and bets that Judge Kane will win," he said.
Andrew Contiguglia, another Denver attorney representing some of the affected defendants, said it’s unlikely Righthaven will actually sue them again.
He, too, was weighing his options as to how to respond to Righthaven’s dismissals.
"We can still move for fees and insist upon a dismissal with prejudice. I believe we would need to do both in order to obtain an order for fees. However, if we just want to move on and feel happy that it is over, then this will do it," Contiguglia said.
"Realistically, I don’t expect that the Denver Post will allow Righthaven to re-file any litigation once the appeal process on the Wolf matter is completed (assuming it is appealed). I think a 10th Circuit appeal on Wolf will take substantial time and its resolution could come after the statute of limitations has run on the copyright claims on the other cases."
A third Denver attorney fighting Righthaven, John Arsenault in Westminster, Colo., said he too was weighing his options and noted Kane may simply reject Righthaven’s dismissal efforts and close all the cases on summary judgment.
"It shows they don’t have much of a case against our client (David Rozzell)," Arsenault said.
He said that’s especially true given the Denver Post’s lack of interest in participating in future Righthaven lawsuits.
Arsenault agreed the chances of Righthaven actually suing the 27 defendants at issue today again is slim as Righthaven would first have to overturn Kane’s decision on appeal.
Still, he said, "It’s a bit unreasonable to leave that as something hanging over their head."
Prior to Kane ruling Righthaven lacked standing to sue under its lawsuit contract with the Denver Post, the owner of the Post had canceled its copyright protection contract with Righthaven. That was after it and Righthaven were hit with a series of public relations debacles in the litigation – and one of the Righthaven defendants in South Carolina countersued the Denver Post and Righthaven accusing them of unfair trade practices, among other things.
Righthaven had until the end of today to file responses to Kane’s order to show cause in six more Denver Post cases in which the defendants had filed answers and/or counterclaims – it likely can’t simply dismiss those suits.
The Denver Post suits Righthaven attempted to dismiss today involved these defendants:
Rozzell, Shaquan Shamar Brown, Tripso Inc., Glenn Church and Ron Eldridge.
Also, J.J.E.F. (Jackson, Johnson, Edwards & Fountain) Holdings, David Peterson, Death and Taxes Media LLC, William Sumner and Green Celebrity Network.
Also, Hans Vondergruen, Matzoball Entertainment Online LLC, Secure Dreams LLC, Baltic Enterprises LLC and Toronto Star Newspapers Ltd.
Also, Skyword Inc., Pantheon Promotions Inc., Donald Douglas, Fugly Media LLC and Trinity Vision Media LLC.
Also, Erin Breig, Christopher Mahon, Bjorklund, Alicia Luke, Neil Rosekrans, A Small Corner of Sanity and Iconix Brand Group Inc.
(This list includes just the first named defendant in each case. In several cases, there are multiple defendants).
Separately, U.S. District Judge James Mahan in Las Vegas today dismissed with prejudice one of the Righthaven lawsuits that Righthaven had amended based on the latest revision to its lawsuit contract (Strategic Alliance Agreement or SAA) with the Review-Journal.
Righthaven claimed the July 7 amendments gave it full ownership of the copyrights at issue and the absolute right to sue over infringements, but Mahan today ruled an October 2010 lawsuit against Garry Newman cannot proceed.
"The restated SAAs present a new set of facts with respect to the alleged copyright ownership, which is impermissible because Righthaven may not amend the defects in the jurisdictional facts themselves," Mahan ruled. "The restated SAAs’ terms substantially contradict the original SAA. Again, defects of allegations may be amended, but not the defects in the facts themselves."
"Dismissal with prejudice is appropriate, because no amendment can save this complaint," Mahan wrote in his dismissal order.
Mahan earlier dismissed the original version of Righthaven’s suit against Newman after he said Righthaven had missed a filing deadline by one day.
Newman is a resident of Great Britain and is associated with the website facepunch.com. He was represented in the litigation by attorneys led by Stephen Zralek at the law firm Bone McAllester Norton PLLC in Nashville.
Righthaven’s suit against Newman alleged an infringement of an R-J Vdara hotel "death ray" story.
But Newman’s reply said the U.S. court lacked jurisdiction over the British man as his website is not targeted towards Nevadans and that the post at issue was made not by Newman but by a user of his website.
His attorneys also said that Righthaven didn’t send a takedown letter prior to filing suit and that since it uses copyrights only to profit from lawsuits, "Righthaven cannot claim with a straight face that it has been harmed."
Today’s ruling for Newman appeared to harm Righthaven’s chances to gain a dismissal without prejudice in another heavily-litigated case Mahan is handling involving the Pahrump Life blog.
Mahan already dismissed that lawsuit based on lack of standing, but kept the case alive so attorneys could fight over whether the dismissal should be without prejudice so Righthaven could re-file the suit based on its beefed-up lawsuit contract with the Review-Journal and its owner Stephens Media LLC.
Righthaven, however, is hopeful one or more of the other federal judges handling its lawsuits will find it currently has standing to sue over R-J material.