Ah, the hits just keep on coming for Righthaven. Having already had judges in Nevada
dismiss Righthaven cases for lack of standing, the one remaining state where Righthaven had tried its questionable legal tactics was South Carolina, which had prompted a somewhat epic countersuit
. Not surprisingly, it's looking like it's a trifecta of losses for Righthaven, as magistrate judge Jacquelyn Austin has made it clear that she's not buying whatever it is that Righthaven is selling
. She's given the company until October 28th to explain why the case shouldn't be dismissed for lack of standing.
Defendant contests Plaintiff’s ownership of the disputed copyright and argues the
case should be dismissed for lack of standing. Plaintiff’s ownership of its assigned
copyrights has been contested in Nevada and Colorado. Judges in Nevada have
dismissed complaints for lack of standing and issued orders to show cause why these
cases should not be dismissed for lack of standing. The copyright assignments in the
Nevada cases are governed by a Strategic Alliance Agreement between Righthaven LLC
and Stephens Media LLC which appears to be very similar to the Copyright Alliance
Agreement (the “CAA”), including its Schedule 1 – Terms and Conditions, between Plaintiff
and MediaNews Group, Inc. (“MediaNews”) that Defendant asserts governs the copyright
assignment at issue in this case.* Moreover, the CAA appears to support Defendant’s
claim that Plaintiff does not have standing to sue for copyright infringement. Specifically,
the CAA appears to qualify any copyright assignments it governs such that Plaintiff is left
only with a bare right to sue and does not own any exclusive rights in the copyright, as
would be required for Plaintiff to have standing to allege an infringement claim on those
copyrights. See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005) (holding
that an assignee who held an accrued claim for copyright infringement, but who had no
legal or beneficial interest in the underlying copyright itself, could not institute a cause of
action for infringement); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d
Cir. 1982) (holding that one who owns no exclusive right in a copyright may not sue for
infringement; only the owner of an exclusive right under a copyright may bring suit).
Although Plaintiff argues substantive analysis of the assignment must await
discovery, the Court believes this issue should be addressed because it goes to Plaintiff’s
standing to bring a copyright infringement claim at all. Thus, in the interest of judicial
economy, the Court issues this Order to Show Cause why the case should not be dismissed for Plaintiff’s lack of ownership of any exclusive rights in the copyright and,
therefore, lack of standing to sue.
I'm assuming that this is really just more guidance to Righthaven competitors
from a judge who recognizes Righthaven's "genuine" legal arguments, right Steve?