Las Vegas Sun

October 1, 2023

Defense attorneys claim ‘key evidence’ in undermining copyright lawsuits

New evidence surfaced Friday in the Righthaven LLC lawsuits that attorneys say could undermine Righthaven’s entire copyright infringement lawsuit campaign over Las Vegas Review-Journal stories.

Attorneys for the online freedom of speech group the Electronic Frontier Foundation (EFF) filed heavily-redacted court papers in Las Vegas on Friday asking the federal court for permission to use the evidence against Righthaven and Stephens Media LLC.

Stephens Media owns the Review-Journal and a Stephens Media affiliate co-owns Righthaven.

Righthaven in the past year has filed 239 copyright infringement lawsuits against website operators and message-board posters, charging material from the Las Vegas Review-Journal and the Denver Post has been re-posted online without authorization.

The information filed Friday involves a Righthaven lawsuit against the Democratic Underground, which was sued after a message-board user posted on the Democratic Underground site four paragraphs from a 34-paragraph Review-Journal story.

The Democratic Underground fired back with a counterclaim against Righthaven and Stephens Media. Both the lawsuit and the counterclaim appear headed toward resolution with competing motions for dismissal by Stephens Media and Righthaven and for summary judgment by the Democratic Underground.

A key issue in the litigation is the relationship between Righthaven and Stephens Media and their arrangement in which Righthaven was able to file its lawsuits after obtaining copyright assignments from Stephens Media.

Key to understanding the relationship is that Righthaven obtains rights to the copyrights weeks or months after they are allegedly infringed on by defendants posting stories, photos and graphics on their websites. Then, weeks or months after that, defendants are sued.

That’s why critics call Righthaven a copyright troll. It finds alleged infringements and then obtains the copyrights — and after that files its suits.

Righthaven has insisted in many of its lawsuits that it has standing to sue in this retroactive fashion based on the copyright assignments covering both past and present infringements.

But in the counterclaim, EFF/Democratic Underground attorneys charged Righthaven and Stephens Media have been abusing copyright law and that “Righthaven does not rightfully own the copyright in question, in that the assignment was a sham designed solely to pursue litigation with rights being retained by Stephens Media.”

In Friday’s court filing, EFF attorneys suggested documents recently turned over to the EFF by Stephens Media back up their claim about the “sham” copyright assignment.

While not disclosing everything they had received because of discovery rules, the EFF attorneys said in court papers this recently-received material is “key evidence” and has never been seen in any of Righthaven’s lawsuits.

In asking the Nevada federal court to allow them to use it in the litigation, they wrote: “In particular, defendants submit that (redacted) demonstrates a compelling need for the court to adjudicate the issues raised by the counterclaim as to (redacted) as that issue may affect and dispose of hundreds of cases now improperly pending in this district.”

The court filing further confirmed this new evidence involves the copyright assignments when the EFF attorneys commented that the new evidence contradicts Stephens Media’s argument it was improperly named in the counterclaim because, according to Stephens Media, “complete ownership of the work being sued upon has been transferred to Righthaven without any ambiguity.”

The new evidence “eviscerates this argument and exposes the plain falsity of these assertions,” EFF attorney Laurence Pulgram of the law firm Fenwick & West LLP in San Francisco wrote in Friday’s filing.

As for prior rulings upholding the validity of the copyright assignment, the EFF attorneys said those rulings came because “Righthaven had withheld from the court” that redacted evidence.

The EFF attorneys also said this new information “further substantiates the impossibility of harm to Righthaven’s market for the work,” a key fair use factor. This suggests the new information shows Stephens Media maintains an economic interest in the copyrights Righthaven has been suing over.

The bottom line for the EFF attorneys is that the new information “substantiates the need to resolve the counterclaim’s allegations that the assignment is invalid, a sham and unenforceable.”

EFF attorneys aren’t the only ones challenging Righthaven’s copyright assignments. The same issue has been raised repeatedly by defendants, with no success so far. Most recently, the Media Bloggers Association raised the issue in another Righthaven case, but the judge in that case hasn’t yet ruled on its assertions.

It’s unknown whether the evidence revealed Friday would apply to Righthaven’s lawsuits over Denver Post material.

In the Denver Post cases, defense attorneys have not yet conducted discovery that may reveal the nature of the copyright assignment arrangement between Righthaven, the Denver Post and its parent, MediaNews Group.

Righthaven and Stephens Media attorneys have not yet responded to Friday’s court filing.

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