In a huge victory against copyright trolls, a judge has thrown out the lawsuit filed by Righthaven
against Democratic Underground. This was the key case where (after lots of stalling), Righthaven eventually revealed the strategic agreement
between it and Stephens Media, which basically shows the copyright assignment to Righthaven was a fraud. All Stephens really transferred was a "right to sue," and that's not a transferable right under copyright law. As we had expected, the judge relies on the Silvers vs. Sony Pictures case, which notes that you can't assign just the right to sue.
Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule
and statute on other grounds.... Section 106 of the Act defines and limits the
exclusive rights under copyright law.... While these exclusive rights may be
transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is
not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights,
transfer solely of the right to sue does not confer standing on the assignee.... One can
only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the
copyright... Further, to obtain a right to sue for past infringement, that right must be
expressly stated in the assignment.
That's the basics. As the court digs into the details, it becomes clear that the judge is monumentally not impressed by the arguments from Righthaven and Stephens Media. A couple of choice quotes:
This conclusion is flagrantly false—to the point that the claim
is disingenuous, if not outright deceitful.
The companies’ current attempt to reinterpret the plain language of
their agreement changes nothing. In reality, Righthaven actually left the transaction with nothing
more than a fabrication...
Righthaven argues that Section 15.1 of the SAA gives the Court authority
to correct any provision of the SAA that is deemed void or unenforceable to approximate the
manifest intent of the parties. The problem is that this argument requires a provision of the SAA
to be void or unenforceable. However, Righthaven’s problem is not that any provision of the SAA
is void or unenforceable but that the SAA simply does not grant Righthaven any of the exclusive
rights defined in Section 106 of the Act required for standing. Therefore, the SAA is not void or
unenforceable, it merely prevents Righthaven from obtaining standing to sue from the Assignment.
Accordingly, the Court need not and shall not amend or reinterpret the SAA to suit Righthaven’s
does not ask the Court to recognize an oral transfer with a late made written memorandum of the
deal, but to fundamentally rewrite the agreement between Righthaven and Stephens Media to grant
Righthaven rights that it never actually received...
Towards the end, the judge unloads on Righthaven's attempt to claim that because earlier rulings by the same court had been okay with its standing, there was some sort of precedent:
Finally, Righthaven contends that multiple courts within this district have already
determined that Righthaven has standing to bring claims for past infringement under the Silver
standard based on the plain language of the copyright assignment. At best, this argument is
disingenuous. As the undersigned issued one of the orders Righthaven cites for this argument, the
undersigned is well aware that Righthaven led the district judges of this district to believe that it
was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the
true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As
the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually
transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current
contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of
interested parties, despite Stephens Media’s right to proceeds from these lawsuits...
As for that last point, it may open up Righthaven to a world of hurt. The judge notes that it appears Righthaven violated the law here and gives the company two weeks to explain why it shouldn't face sanctions not just for the failure to disclose in this case, but in all of its cases
As shown in the preceding pages, the Court believes that Righthaven has made
multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will
only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an
interested party in Righthaven’s Certificate of Interested Parties. (Dkt. #5.) Rule 7.1-1 of the
Local Rules of Practice for the District of Nevada requires parties to disclose “all persons,
associations of persons, firms, partnerships or corporations (including parent corporations) which
have a direct, pecuniary interest in the outcome of the case.” This Local Rule requires greater
disclosure than Federal Rule 7.1, which only requires non-governmental corporate parties to
disclose parent corporations or corporations owning more than 10% of the party’s stock. Frankly,
if receiving 50% of litigation proceeds minus costs (Dkt. #79, SAA Section 5) does not create a
pecuniary interest under Local Rule 7.1-1, the Court isn’t sure what would.
Making this failure more egregious, not only did Righthaven fail to identify
Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to
disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this
District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2)
weeks from the date of this order, why it should not be sanctioned for this flagrant
misrepresentation to the Court.
I would suggest that judge Roger Hunt is not particularly pleased with Righthaven. He's also allowing Democratic Underground lawyers to seek attorneys' fees from Righthaven and Stephens Media.
This will likely kill off most of the remaining Righthaven cases in Nevada. While not all are handled by Judge Hunt, you can be quite certain that all the other judges in the court will be aware of this. The impact on the Colorado cases isn't as certain, but all of those cases are under a single judge who is equally upset
at Righthaven, and reviewing similar issues. I wouldn't be surprised to see a similar end result.
Righthaven could (and might?) appeal, but it's going to be difficult to reverse this. Furthermore, in theory Righthaven could come up with a new agreement with Stephens Media and continue suing, but the court already expressed its doubts about the weak attempt by the two companies to "amend" the existing agreement, suggesting that it was just "cosmetic adjustments" that the court did not believe would change the outcome.
What may be interesting is to see if any of the dozens of folks who already settled come after Righthaven now and demand their money back... That could make for an interesting followup legal battle. All in all, this is a huge win against copyright trolling.