Righthaven Archives
A judge is threatening to dismiss another copyright infringement lawsuit filed by Righthaven LLC of Las Vegas for a familiar reason: Lack of standing.
U.S. District Judge Kent Dawson in Las Vegas signed an order Friday giving Righthaven until Nov. 14 to show cause why its suit against Todd Taliaferro of Fort Lauderdale, Fla., shouldn’t be dismissed.
The Jan. 12 lawsuit charged Taliaferro posted on a website without authorization a Las Vegas Review-Journal column about the so-called Bellagio biker bandit.
Dawson on Friday rejected Taliaferro’s requests that the suit be dismissed on grounds that Righthaven usually wins involving whether the Nevada court has jurisdiction over out-of-state defendants.
“The forum state (Nevada) has an interest in adjudicating an infringement upon a news article originated by the forum state’s largest local newspaper publisher written about actions affecting the gaming industry, which is critical to the state,” Dawson wrote in his ruling. “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.”
Taliaferro had also asked for a change of venue, telling the court he has disabilities and is on food stamps.
But Dawson found hardship is just one factor in the jurisdictional analysis and that the other factors favor Righthaven.
One of those factors is that the Nevada court is familiar with Righthaven as it has filed 217 suits in that court since March 2010. (Counting suits in Colorado and South Carolina, Righthaven has filed 275 suits over newspaper material claiming it was infringed on by websites, bloggers and message board posters).
In his unsuccessful dismissal motion, Taliaferro said the R-J column at issue was posted on a noncommercial website for Harley-Davidson motorcycle enthusiasts.
“In fact, plaintiff placed the alleged article on a website which plaintiff itself made available in Florida, and elsewhere, without charge, and which plaintiff invited individuals to copy and utilize for personal non-commercial purposes,” his response said.
But in a setback for Righthaven, Dawson noted that he and other judges had ruled in earlier cases that Righthaven lacked standing to sue over R-J material under the early versions of Righthaven’s lawsuit contract with R-J owner Stephens Media LLC.
The problem with the lawsuits, the judges ruled, is that the R-J maintained control of the copyrights and the copyrighted material despite Righthaven’s claims of ownership.
Righthaven is now hoping one of the Nevada federal judges will revive its right to sue under an amended lawsuit contract with Stephens Media.
Nevertheless, Dawson ordered Righthaven to show cause why the suit against Taliaferro shouldn’t be dismissed as it was filed under the initial — and earlier rejected — lawsuit contract.
In this case, Righthaven has not tried to amend the lawsuit to assert its beefed-up copyright ownership claims under the latest version of the Stephens Media copyright protection contract.
Another federal judge in Nevada, James Mahan, has already rejected an attempt by Righthaven to amend a suit with its expanded standing claims. Righthaven cannot amend jurisdictional facts, Mahan wrote in dismissing a suit against Garry Newman of the website facepunch.com.
Dawson is presiding over nine more Righthaven lawsuits, but it’s not yet known if they’ll meet the same fate as others dismissed for lack of standing under the initial flawed versions of the R-J lawsuit contract.
For Righthaven, Dawson’s order on Friday appears to be one more legal headache on top of the rejections of its standing to sue by multiple judges in Nevada and Colorado, fair use victories by three defendants and assertions by Righthaven itself that it’s short on cash and can’t come up with a bond to guarantee payment of a prevailing defendant’s legal fees.
In another Righthaven development, Colorado lawsuit defendant Andy Hwang revealed in court papers he settled a Righthaven suit over a Denver Post photo for $3,250 and that it was paid with four installments by the end of July.
Just two months later, Senior U.S. District Judge John L. Kane ruled Righthaven lacked standing to sue over that photo — meaning that if he hadn’t settled, Hwang’s suit would likely have been dismissed without him paying a dime.
Whether defendants who settled with Righthaven in Nevada and Colorado under its flawed lawsuit contracts will receive settlement refunds hasn’t been determined — and any refunds may be contingent on Righthaven losing its appeals of the rulings finding it lacked standing.
The $3,250 Hwang says he settled for is more than two other publicly-disclosed settlements of $1,000
and $2,185 — but is lower than the $5,000 gained by Righthaven in a fourth publicly disclosed settlement.
With no judge or jury ever closing a copyright infringement case on the merits in Righthaven’s favor and awarding it damages, the company’s revenue since March 2010 appears to have come mainly from lawsuit settlements.
But that revenue stream appears to be drying up as Righthaven’s lawsuit campaign is stalled while it awaits word on whether it has standing to sue under the amended Review-Journal lawsuit contract. It won’t be obtaining more copyrights from the Denver Post for lawsuits as the Post has canceled its lawsuit contract with Righthaven.