Righthaven gets legal win in copyright lawsuit campaign

Las Vegas copyright enforcement company Righthaven LLC scored an initial legal victory in one of its lawsuits Thursday when a federal judge declined to dismiss the case.

The ruling involving Canadian website www.majorwager.com means attorneys on both sides have more work to do as fact-finding discovery can now proceed unless a settlement is reached.

Thursday's ruling in favor of Righthaven was issued by U.S. District Judge Gloria Navarro in Las Vegas and may have been a pleasant surprise for Righthaven.

That's because it was Navarro, in a different case, who last month dealt Righthaven a setback by ruling a defendant may have had an "implied license" to copy material from the Las Vegas Review-Journal because the Review-Journal encourages the online sharing of its stories.

Righthaven is the Review-Journal's copyright enforcement partner.

Thursday's ruling also was likely welcomed by Righthaven since a different federal judge on Oct. 20 dismissed a case against a Righthaven defendant without the case ever advancing to evidence-gathering or even a hearing.

In Thursday's ruling, Navarro rejected arguments by attorneys for the Las Vegas office of Lewis and Roca LLP that the case should be thrown out before advancing to the evidence-gathering stage.

Navarro found there's a disputed question of fact about an individual who posted a March 18 Review-Journal story about the NCAA men's basketball tournament on a forum portion of the MajorWager website. Righthaven says this individual, "CLEVFAN," was a MajorWager employee while MajorWager insists CLEVFAN was a former employee at the time of the posting.

For purposes of the motion for dismissal, Navarro rejected MajorWager's argument that Righthaven lacked standing to sue because it didn't own the copyright to the story at the time of the infringement. Righthaven finds infringements, obtains copyrights to those stories from the Review-Journal and then sues over the infringements on a retroactive basis.

"The plaintiff’s complaint ... provides enough evidence for the court to reach a plausible inference that rights to the article as well as past infringements were transferred to plaintiff. Absent any other evidence to the contrary, the assignor (Review-Journal owner Stephens Media LLC) appears to have successfully transferred the ownership interest in the accrued past infringement by expressly stating it in the assignment," Navarro wrote.

But Navarro seemed to hint that the nature of the transfer of the copyright from Stephens Media to Righthaven is something that can be explored as the case progresses.

"Defendants do not question, nor do the parties address the true nature of the transfer or any other possible defects related to plaintiff’s standing. Regardless of the assignment’s assertions, if only a right to sue was transferred; plaintiff may lack standing," Navarro wrote in a footnote.

The relationship between Stephens Media -- of which an affiliate has invested in Righthaven -- and Righthaven is being explored by Lewis and Roca and other law firms defending Righthaven cases as they have charged Righthaven is engaged in a frivolous lawsuit settlement shakedown operation. The Review-Journal and Righthaven, however, say Righthaven's 159 lawsuits filed since March are necessary to stop unauthorized copying of Review-Journal stories by bloggers, website operators and website forum participants.

Navarro also rejected MajorWager's argument that the federal court in Nevada lacks "personal jurisdiction" over MajorWager under the laws of Nevada and the U.S. Constitution's due process provisions. The due process issues involve whether defendants "purposely avail" themselves to the jurisdiction of Nevada courts and whether the exercise of jurisdiction is reasonable

Navarro wrote the defendant purposely availed itself to the jurisdiction of the court in Nevada as it's common knowledge the Review-Journal is based in Nevada and that's where the allegedly infringing story came from.

As to whether it's reasonable to pursue the case in Nevada in compliance with the 14th Amendment to the Constitution guaranteeing due process, Navarro noted there are five factors to consider: the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining a convenient and effective solution, the interstate judicial system's interest in efficiently resolving controversies and the shared interest of the states in "furthering substantive social policies."

While MajorWager made a strong case that litigating the case in Nevada would be burdensome, the other factors weigh in Righthaven's favor, Navarro wrote.

"Arguably, the forum state has an interest in adjudicating an infringement upon a news article originated by the forum state’s largest local newspaper publisher written about the Las Vegas, Nev.-based sports books. The Las Vegas Review Journal’s subscribers are purportedly primarily residents of the forum state of Nevada and the LVRJ advertisers consist mainly of local Nevada businesses. Any infringement could reasonably be expected to affect them as well," Navarro wrote.

"Plaintiff has named numerous defendants in other identical suits each from numerous other states. The interstate judicial system would benefit from the efficient resolution of this case in the same forum as the others. This would serve fundamental substantive common social policies," wrote Navarro.

In rejecting the argument that the case could be dealt with in Canada, she noted it involved U.S. copyright laws.

"Plaintiff has sufficiently demonstrated that the plaintiff owns the copyrights and defendant infringed the copyright by duplicating plaintiff’s article and placing the article on defendant’s website. Therefore, this court finds that plaintiff has pled facts sufficient to sustain a cause of action," Navarro concluded.