Attorneys for one of the Righthaven copyright infringement lawsuit defendants are urging an appeals court not to give Righthaven a procedural break, saying it should face the consequences of its own mistakes.
Las Vegas-based Righthaven tried to sue people, groups and companies that copied and re-posted online material from the Las Vegas Review-Journal and the Denver Post, but after 275 lawsuits its litigation campaign was shut down last year. Judges said it lacked standing to sue as a copyright assignee because of flawed copyright assignments, or because defendants were protected by the fair use doctrine of copyright law.
Righthaven, however, continues to pursue at least one appeal of its legal setbacks. In the 9th U.S. Circuit Court of Appeals in San Francisco, it's asking the court to strike down a ruling finding Kentucky resident Wayne Hoehn was protected by fair use in posting an R-J column; and that Righthaven lacked standing to sue him.
Review-Journal columnist and former Publisher Sherman Frederick has taken a special interest in that case as it was his column that Hoehn posted on a sports betting website message board without authorization. The column was called "Public employee pensions — we can’t afford them."
As the Hoehn appeal progressed, the appeals court clerk told Righthaven's outside attorney at the time on Jan. 17 that certain records Righthaven was using in the appeal had not been filed on time and there was no proof Hoehn's attorneys had been served with them.
Righthaven at some point this winter lost the services of the outside attorney, Shawn Mangano in Las Vegas. For reasons that Mangano has not explained, he stopped appearing at court hearings, stopped filing briefs and stopped communicating with Righthaven.
Righthaven then hired another attorney to prosecute the appeal. The new attorney, Erik Syverson in Los Angeles, told the court on May 9 that the company needed an extension of time to file the required records for the court to consider.
"This motion is necessitated by the failure of Righthaven’s prior counsel to either timely file such excerpts (records) or to file any certificate of service regarding the excerpts. Righthaven’s prior counsel failed to apprise Righthaven of the notice of deficiency sent by the court in January, and has failed to contact or respond to any communications from Righthaven or its Chief Executive Officer Steven A. Gibson,'' Syverson's filing said.
Hoehn's attorneys this week urged the court to reject Syverson's request and to dismiss the Righthaven appeal. They noted the court clerk in January had given Righthaven two weeks to file its documents or face dismissal of the appeal, but Righthaven failed to do so in that timeframe.
They noted four other Righthaven appeals in the 9th Circuit and the 10th U.S. Circuit Court of Appeals in Denver had been dismissed because Righthaven failed to prosecute them or missed key deadlines.
The Hoehn attorneys said that in January, when the clerk had warned Righthaven about the missing documents, Mangano was still in contact with Gibson.
''All indications are that Righthaven chose to abandon this appeal, like so many others,'' Hoehn's filing said.
''Throughout its litigation campaign, Righthaven has consistently blundered, missed deadlines and suffered one self-inflicted wound after another only to place the blame on a constantly changing cast of attorneys. Righthaven has consistently refused to place the blame where it belongs — squarely on Righthaven itself, under the direction of Steven Gibson, the company’s chief executive officer and alter-ego,'' said the filing by Randazza Legal Group.
The 9th Circuit hasn't indicated when it may rule on Righthaven's extension motion.