The SAA provided that Stephens Media automatically received an exclusive license in any copyrighted work it assigned to Righthaven, so that Stephens Media retained “the unfettered and exclusive ability” to exploit the copyrights. Righthaven, on the other hand, had “no right or license” to exploit the work or participate in any royalties associated with the exploitation of the work. The contracts left Righthaven without any ability to reproduce the works, distribute them, or exploit any other exclusive right under the Copyright Act. See 17 U.S.C. § 106. Without any of those rights, Righthaven was left only with the bare right to sue, which is insufficient for standing under the Copyright Act and Silvers.

because we agree that Righthaven did not have standing, it is not appropriate for us to go further or for the district court’s alternative ruling to stand. We therefore vacate the portion of the district court’s order that analyzed the merits of the fair use defense and granted the motion for summary judgment.

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

In connection with the Defendant’s judgment enforcement efforts, the Court appointed the Receiver to, among other things, seize the copyrights assigned to Righthaven by various entities (the “Copyrights”), as well as its trademarks and other intangible property, so that they could be sold at auction. (Doc. # 62, 66.) Despite the Receiver’s efforts, Righthaven has not transferred its intellectual property. (Docs. # 70, 81, 82.) The only property that the Receiver has been able to obtain and auction is Righthaven’s former domain name, <righthaven.com>, which was sold for more than $3,000 in a commercially reasonable auction (Docs. # 81, 82).

Based on the evidence submitted to the court by the Receiver (Docs. # 70, 82), Righthaven has failed to substantively participate in the orderly disposition and sale of its intangible assets as ordered on December 12, 2011. (Doc. # 66.) Moreover, Righthaven failed to appear at the originally scheduled January 5, 2012 debtor examination in this case, (Doc. # 71), and failed to appear at the March 5, 2012 hearing giving rise to this Order. (Doc. # 88.)

In light of Righthaven’s lack of participation in these proceedings, and Hoehn’s entitlement to relief (Docs. # 62, 66), this Court concludes it is appropriate to transfer such rights as Righthaven may still hold in Righthaven’s intellectual property to the Receiver, Lara Pearson. The Court deems Righthaven’s conduct in this case to constitute its consent to this Order.

This Court acknowledges that there is a dispute over what intellectual property rights Righthaven actually possesses. Nonetheless, the Court may use its powers under 17 U.S.C. § 201(d)(1) to transfer Righthaven’s copyright rights, whatever they are deemed to be, to the Receiver for auction pursuant to the Court’s December 12, 2011 order (Doc. # 66). While Righthaven has argued now that it does not have more than the bare right to sue, as this Court previously held, Righthaven does possess copyright registrations that can be assigned by operation of law. The copyright registrations to more than 275 works are in Righthaven’s name, can be transferred by this Court, and can then be auctioned by the Receiver.

While it would be far more satisfying to see this motion defeated on substantive grounds, it fails cleanly as a matter of procedure. Rule 27-3(a) requires the movant’s counsel to make "every practicable effort" to notify opposing counsel before filing an Emergency Motion. Righthaven’s counsel failed to do so, and misled this Court about his efforts to do so. Hoehn’s counsel first learned of the Motion by receiving it through the Court’s cm/ecf system .... Only after receiving the Motion did Hoehn's counsel receive a fax from Righthaven's counsel notifying them of its intent to file this Motion

Pearson added Thursday, “If all goes well, I intend to put the domain name up for auction before the holiday break begins tomorrow, though I have not yet made a firm decision as to where the domain will be auctioned.”

If you have actually managed to convince your clients that it is a good idea for them to spend tens thousands of dollars (or more) in this case for the sole eventual purpose of merely costing Mr. Hoehn money, you can rest assured that it will be a public relations negative for them, in no small part due to Righthaven’s poor handling of this case, along with hundreds of others, from its inception to present. I strongly suggest that you consider recommending a different "make-work" project for your clients. I understand that in this day and age of biglaw layoffs, it is a constant battle to make sure that your existence is justified on the firm’s billing ledgers. This is the wrong case with which to round out your sheet. I can assure you of that. Your clients will waste money and all the money will buy them is the opportunity to look like idiots.

"From our perspective, that just can't stand."

Righthaven’s counsel originally requested a telephonic 14-day extension of time to file its opening brief in this matter on October 27, but was advised that its opening brief was not due under November 28, 2011. Upon further inquiry, it appears that the opening brief deadline provided was for an associated appeal in this action concerning an award of attorneys’ fees and costs (Case No. 11-16995). Righthaven discovered this apparent misunderstanding today, October 31, 2011, which is one business day following the October 28, 2011 filing deadline for its opening brief.

Defendant Wayne Hoehn ("Hoehn"), through counsel, opposes Righthaven LLC’s ("Righthaven’s") Motion for Extension of Time to File Opening Brief (the "Motion"). (Doc. # 4.) Righthaven’s request for an extension is untimely, sought four days after Righthaven’s brief was due - October 27 (Doc. # 1), not October 28, as Righthaven’s counsel misstated in the Motion (Doc. # 4 at 2). The docket’s plain language belies Righthaven’s claims of diligence, as even a cursory check would have revealed, immediately, the appellant’s briefing deadline. Moreover, a review of this Circuit’s law and the context in which Righthaven brings this motion reveals that it is bereft of good faith as well.

Righthaven also attempts to blame the Court’s clerk for its untimely motion. (Doc. # 4 at 2). Righthaven’s inability to track its appeals before this Court is not the fault of Court administrators. With six appeals pending before this District – and not a single brief filed despite numerous extensions sought – it is all the more important that Righthaven diligently prosecute its appeals. To date, it has not done so, nor offered any legitimate excuse for failing to abide by the original briefing schedule imposed in a single appeal before this Court.

The instant untimely Motion (Doc. # 4) is Hoehn’s first indication that Righthaven had any issue with the briefing schedule. Having not voiced any objections to the Court’s earlier deadlines, Hoehn’s attorneys have made travel plans, holiday plans, and scheduled other litigation matters with this original schedule in mind. (Decl. of J. DeVoy.) To allow Righthaven’s counsel to attempt to change the clock after time has run out will create serious prejudice to Hoehn’s counsel.

Righthaven has attempted to secure a bond as required by the district court to stay the Judgment pending appeal. To date, Righthaven has been unable to secure a bond. The terms required by the bonding companies that Righthaven’s counsel has investigated and/or contacted are an impediment to meeting the district court’s stay requirement. The bonding companies are requiring what amounts to a full cash bond. In sum, the bonding companies ask for full cash payment, certain forms of collateral held by the company or irrevocable letters of credit be posted to obtain a bond in the amount requested. To date, Righthaven has been unable to satisfactorily meet these requirements in a manner acceptable to a bonding company. Due to the pending appeals and the stay of certain active litigation matters, Righthaven’s operating capital is being utilized to service its monthly operating expenses. As such, it is presently unable to allocate more than $34,000 toward the bond required by the district court to stay the Judgment pending appeal.

In Herman Melville’s classic, Bartleby the Scrivener, an attorney finds frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a task, he replies with the classic refrain: “I would prefer not to.” Initially infuriated, but beguiled by Bartleby’s charmingly passive insolence, the narrator tolerates Bartleby’s masterfully eccentric defiance, but eventually fires him. Once fired, Bartleby’s behavior becomes stranger, and he refuses to leave the premises of his employer, who finds Bartleby’s stubbornness to be an immoveable object. Bartleby’s defiance, as effective as it is, eventually leads to his undoing. Bartleby’s preference leads to his imprisonment and starvation, as he finally encounters both men and forces of nature who are unmoved by his antics.

The time has come for Righthaven’s shenanigans to end. Righthaven picked this fight. Righthaven, created and operated by an attorney, should have known better. Righthaven could have changed course at any time. Righthaven preferred not to. The consequence for Righthaven’s actions is now at its door, and whether it would prefer to or not, the law requires it to comply. Preferring not to comply with a lawfully issued court order is no emergency, and Righthaven should be compelled to answer for its transgressions. Even Bartleby, charming as he was, eventually suffered the inevitable consequences of his irrational intransigence. Righthaven must as well.

Righthaven has provided no statement of its operating expenses, and it appears that Righthaven’s sole expenses are paying its CEO, who hatched and profited from this illegal scheme, and paying its attorneys in order to file frivolous motions and avoid paying lawful judgments. It is clear that Righthaven’s plan is to consume its remaining capital by transferring money to those who least deserve it, exhausting its funds until it is in a state of bankruptcy. The courts, thus far, have been unwittingly complicit in this scheme by their failure to take a definitive and stand against the ongoing fraudulent transfers. It must stop here.

Righthaven’s mass litigation model now descends upon the Court of Appeals, and it has brought no fewer than five appeals before this Court – all of which are currently pending. Beyond this case, Righthaven is also the appellant in Realty One Group, Incorporated, Case No. 11-15714 (9th Cir., filed Mar. 24, 2011); Jama, Case No. 11-16358 (9th Cir., filed June 2, 2011); DiBiase, Case No. 11-16776 (9th Cir., filed July 22, 2011); and DU, Case No. 11-17210 (9th Cir., filed Sept. 19, 2011). Righthaven also appealed a loss to the Tenth Circuit. Wolf, Case No. 11-1469 (10th Cir., filed Oct. 11, 2011). Six appeals pending, yet Righthaven claims that being required to post a mere $34,045.50 bond is an “emergency.” Righthaven mocks the definition of the word and mocks this court by bringing this frivolous motion.

The propriety of Righthaven’s appeals is in serious doubt. Righthaven’s opening brief in its first appeal, Realty One Group, Inc., Case No. 11-15714, was due to this Court on September 19, 2011 and has yet to be filed. This appeal appears to be another stall tactic for Righthaven to deny the defendant in that case, and the First Amendment principles its fair use victory embraces, any finality. This leaves two possibilities explaining Righthaven’s financial condition: Either it has $34,000 that it can use to post a bond and it prefers not to, or it is absolutely broke and pursuing its appeals in bad faith, in order to deny prevailing defendants finality – and extract a settlement from them still.