by Mike Masnick

Filed Under:
colorado, copyright, standing


Righthaven Loses (Big Time) In Colorado As Well

from the another-one-bites-the-dust dept

Another day, another Righthaven disaster. We've been waiting for a while for Judge John Kane in Colorado to rule on Righthaven's cases there. As you may recall, he'd put them all on hold back in May to determine if Righthaven had standing. He put them on hold after the details of the sham copyright assignments came out, but before a series of Nevada courts all ruled against Righthaven, saying that the company had no standing to sue, because it did not actually hold the copyright.

Judge Kane has finally ruled in one such case and once again Righthaven comes up a loser. Judge Kane ruled similarly to the Nevada cases in explaining that Righthaven did not have standing or the copyrights properly assigned to it, and thus he has dismissed the case and accelerated things by switching the status of the case from a motion to dismiss up to summary judgment, allowing him to order Righthaven to also pay legal fees (something it's been avoiding and ignoring in other cases).

The ruling is a worthwhile read. While those sued by Righthaven used the precedent set in the Silvers case, which states that you cannot transfer just the bare right to sue, Judge Kane points out that's only controlling precedent in the 9th Circuit, and since this court is in the 10th Circuit, it is not controlling. So rather than just relying on Silvers, Judge Kane does a thorough analysis of copyright law -- going all the way back to the Constitutional origins of the law. It's a worthwhile read. It starts with "promoting the progress" (of course) and then goes through some details of the 1909 Copyright Act and the 1976 Copyright Act. In looking at the 1909 Act, Judge Kane notes the historical "balance" of copyright law, in seeking greater legal dissemination of the works, and how that's limited by the ability to assign the bare right to sue:
A third-party who has been assigned the bare right to sue for infringement has no interest in the legal dissemination of the copyrighted material. On the contrary, that party derives its sole economic benefit by instituting claims of infringement, a course of action which necessarily limits public access to the copyrighted work. This prioritizes economic benefit over public access, in direct contradiction to the constitutionally mandated equilibrium upon which copyright law is based. The legislative history relating to the Copyright Act of 1976 supports this interpretation.
It's worth noting that this was the case in which lawyer Marc Randazza filed his Glengarry Glen Ross motion, which some had criticized. In this case, it appears to have worked.

So, what's left for Righthaven? Its cases in Nevada appear to be dead. The cases in Colorado are now likely dead as well. There's a case in South Carolina that probably isn't long for this world. Righthaven has stopped filing new cases. So, right now, it's fighting to not pay legal fees (more on that shortly), and also facing charges of unauthorized practice of law in a few states. It may also be working on an appeal, though one has to wonder if it actually has the money for an appeal at this point...

Update: Not a huge surprise, but we've received word that Judge Kane has started asking Righthaven to show cause for why other cases in Colorado shouldn't face this same result by October 7th.

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  1. identicon
    Scote, 28 Sep 2011 @ 9:53am

    RIAA suits

    No, I don't think so. This Righthaven/Steve Gibson case was dismissed upon summary judgment for lack of standing--that is they didn't have the proper right to sue. That is because Righthaven and it's content partner tried to pull a fast one by making false claims of transferring the copyright to Righthaven. If the Chicago Trib had just hired Steve Gibson as an attorney and sued for copyright infringement under its own name, as the Plaintiff, then it would have had standing to sue. The RIAA plaintiffs have all been named parties to suits, so they don't have the same standing issue that Righthaven had (though there have been some questions of standing on various individual copyrights on individual songs, just not of the same nature as those in the Righthaven case.)

    However, the fairness of statutory damages of up to $150,000 per infringement has been brought up by plaintiffs and judges in RIAA suits. By the RIAA's calculations, a 64 GB iPod with 16,000 pirated songs is worth 2.4 billion dollars. And the RIAA members annual losses due to piracy must be greater than the GDP of every nation on earth. (Clearly the US Government should empty out Fort Knox and replace all that gold with some iPods loaded with pirated music since it is many orders of magnitude more valuable than gold. Perhaps the US should back US currency with pirated music, the most valuable commodity on earth--well, according to damages assertions by RIAA lawsuits...)

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