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It's Official: RIAA Trying To Join Righthaven Lawsuit

from the pr-of-no-matter dept

Mon, Dec 5th 2011 7:00pm — Mike Masnick

This is no surprise given the RIAA's previous statements and actions, but it's now official. The RIAA has filed an amicus brief, along with a motion for leave to file the brief, since Hoehn's lawyer, Marc Randazza, refused to allow the amicus brief. Both filings are embedded below (thanks to a few of you for sending these over). As expected, the filing, from both the RIAA and the AAP, argues that the court erred in even deciding the fair use issue, once it had decided that RIghthaven had no standing. Basically, the RIAA really, really, really wants this fair use ruling off the books. To be fair, I can see their overall argument here. If Righthaven has no standing, then should the court even consider the specific issues? But, that said, if the court does decide to do so, is that really so harmful? It's still making a ruling based on the same basic info, and just clarifying the details, should the "rightful" copyright holder seek to take on the same lawsuit. In this case, the court accomplishes a key point: making it clear that such an effort would waste the court's time. That seems like a reasonable move. Either way, this looks pretty silly from the RIAA's standpoint. They're so afraid of a ruling that allows fair use that they're willing to get into bed with Righthaven.

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Filed Under: copyright, fair use, hoehn
Companies: riaa, righthaven

39 Comments

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robin, 5 Dec 2011 @ 7:34pm

Hari-Kari
There's a bigger issue here than the puny little Masnicks of the world will never understand: protecting America's Creatives.

The RIAA is perhaps the most selfless organization known in late Western Civilization, as evidenced by its willingness to fall on its sword to defend the hard-working artists of this great nation.

And getting into bed with Righthaven (unprotected mid you) qualifies as much as any act imaginable as hari-kari, or falling on your sword.

You're either down with suicide or down with death, either way they're going down protecting the artists who work hard every day.

(Really not too bad for my first mock rant imho. Any critiques, improvements?)
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Anonymous Coward, 5 Dec 2011 @ 7:36pm

Re: Hari-Kari
You forgot to mention the Kool - Aid that everyone here drinks.
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Loki, 5 Dec 2011 @ 7:49pm

The RIAA, MPAA, Righthaven, and such argue copyright infringement (and by "infringement" they mean any use that doesn't result in them receiving large sums of money) is theft. Pure and sumple.

I argue their mass lawsuits and settlement (and by "settlement" I mean shakedown) letters are extortion. Plain and simple.

I am every bit as adamant and firm in my convictions (perhaps more so) than they are in theirs.

But I am willing to compromise here.

The day the people responsible for these bogus suits stand up in public, admit what they did was/is extortion, and agree to suffer appropriate penalties (and by "appropriate penalties" I mean jail time)for their actions?

That is the day I'll concede (grudgingly, but like I said I'll compromise) that infringement is theft.
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Loki, 5 Dec 2011 @ 7:51pm

Re: Hari-Kari
That was completely asinine and stupid. In other words, you did very well.
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Anonymous Coward, 5 Dec 2011 @ 8:05pm

The RIAA has this one right. Basically, if someone has no standing, how could they have properly argued the case to start with? As soon as the judge said Righthaven has no standing, everything else should have been set aside.

It's a pretty basic thing.
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TtfnJohn (profile), 5 Dec 2011 @ 8:14pm

Re:
With respect, I disagree.

But we'll find out at the appellate stage should they find a court that will listen to them.

Righthaven's presence or exclusion of the issue of fair use is moot as other interested parties will still there for the ruling.

But we'll see now as this grinds it's way through the rarified air of the upper echelons of the legal system.

Should be interesting. If not fun.
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iamtheky (profile), 5 Dec 2011 @ 8:21pm

Since when has the merit of a case had complete bearing on summary judgements? The two are not mutually exclusive. And in this instance I do not believe the party bringing the case matters, just the original and the fair use. Couldnt Hoehn just ask for a fair use summary judgement, i think he may have merit to ask, if it turns out to be needed?
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Anonymous Coward, 5 Dec 2011 @ 8:25pm

they're willing to get into bed with Righthaven.

Filing an amicus brief is not the same as getting in bed with a party.

When the Center for Democracy and Technology filed an amicus brief in US v. Stevens, no one said they were getting in bed with the makers of animal crush videos.

When David Post and Eugene Volokh filed an amicus brief in Snyder v. Phelps, no one said they were getting in bed with the Westboro Baptist Church.
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Anonymous Coward, 5 Dec 2011 @ 8:30pm

Re: Re:
It comes to the same problem - if Righthaven had no standing, the ruling itself should be struck, because in ruling that Righthaven didn't have standing, the judge effectively through the entire case out.

The lack of standing and a ruling stand in opposition of each other. Either they had standing and there was a ruling, or they have no standing and as a result, there is no ruling.
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Lawrence D'Oliveiro, 5 Dec 2011 @ 8:44pm

Maybe That Should Be An �Inimicus� Brief
They�re not being a friend of justice here, but its enemy.
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TROLLING GOLD, 5 Dec 2011 @ 8:56pm

Re: Hari-Kari
That was trolling brown-gold. (the best kind of troll gold)

It could have used more troll buzz words like "broad brush", "communist", or "freetard."

Also, it was too coherent.

troll grade 9/10
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Dr Evil, 5 Dec 2011 @ 9:22pm

special circumstances
yes, except Righthaven keeps coming back for more. again, and again, arguing the same things, suing after being told 'NO'. Therefore, the judge had to explain himself.... bravo RIAA, now the taxpayer is paying to defend against you...

big hugs.

(hint, file a brief, be on the hook for the defense atty fees please)
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A Guy (profile), 6 Dec 2011 @ 12:25am

Re: Re: Re:
Couldn't the blogger have initiated a proceeding to ask the court for a finding of fair use without involving RightHaven?

If no rights holder responded, wouldn't the court have given the same opinion?

The rights holder was obviously aware of the litigation and wanted RightHaven to represent them, even if they bungled the contract. It seems to me that if an invalid representation contract is enough to invalidate the entire proceeding for the other side, then wealthy litigants could "accidentally" write an improper contract every time a very important case came up and then say "whoops" if they lose to get more bites at the apple.

IANAL, but it seems very suspect to me.
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The eejit (profile), 6 Dec 2011 @ 1:05am

Re:
The difference between those and this case is that, as far as I know, those amici briefs didn't also include financial backing.
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abc gum, 6 Dec 2011 @ 4:39am

Re: Re: Re:
So, in your world, the court is not allowed to sentence Righthaven for fraud because Righthaven had no standing ... awesome.
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Richard (profile), 6 Dec 2011 @ 5:00am

Re: Re:
Judges often go through a "what if?" exercise in an attempt to stifle a long sequence of appeals. Here the jusdge is saying - "Righthaven fail for lack of standing - but - for the avoidance of unnecessary litigation - they would also fail on fair use."
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Ima Fish (profile), 6 Dec 2011 @ 5:26am

"To be fair, I can see their overall argument here. If Righthaven has no standing, then should the court even consider the specific issues?"

Yes. Yes it should.

It's quite common for courts to give alternative reasons in their opinions. They'll say, for example, that the case is dismissed because the plaintiff has no standing. And in alternative, if it is later determined that the plaintiff does have standing, that fair use is complete a defense to this action.

If the initial basis for the dismissal or ruling stands, the alternative bases become dicta.

If there are multiple reasons to dismiss an action or rule upon an issue, a good court deals with all of them. That keeps the case from being remanded back from an appellate court because of an unaddressed issue.
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average_joe (profile), 6 Dec 2011 @ 5:49am

Now that I've read the amicus brief, I think even more that Randazza is being petulant about this whole thing. The brief doesn't even take a position on the standing issue, and it barely mentions Judge Pro's fair use analysis. Instead, it focuses on the simple truth that if there's no standing, then the fair use ruling should be vacated. Considering that that position is the correct, neutral statement of the law, Randazza's opposition to it rings absolutely hollow.

Instead of politely and professionally consenting to this brief, Randazza staged a letter and got the anti-Righthaven and anti-RIAA mouthpieces at Techdirt and TorrentFreak to try and turn this into a negative PR thing for the RIAA. That is the definition of petulance in my book.
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Ima Fish (profile), 6 Dec 2011 @ 7:17am

Re:
"it focuses on the simple truth that if there's no standing, then the fair use ruling should be vacated."

Read my comment directly above you. It's quite common for courts to give alternative bases for its opinion. There is nothing wrong with doing so and there is no law or court rule which forbids it.

If the primary basis is upheld, the alternatives are not vacated, they're merely considered dicta.
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Anonymous Coward, 6 Dec 2011 @ 8:00am

Re: Re:
And this case does include financial backing? Where do you see that?
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average_joe (profile), 6 Dec 2011 @ 8:18am

Re: Re:
But we're talking about subject matter jurisdiction, which cannot be waived, and without which the district court has no authority to decide a case, even hypothetically. A "federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle." Ex parte McCardle, 74 U.S. 506, 514, (1868). The requirement that jurisdiction be established as a threshold matter �spring[s] from the nature and limits of the judicial power of the United States� and is �inflexible and without exception.� Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900).
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Chosen Reject (profile), 6 Dec 2011 @ 9:11am

Re: Re: Re:
That's all fine and good for jurisdictional issues. I am no lawyer, but it seems to me that jurisdiction and standing are two separate issues. No one is questioning whether this court had jurisdiction, only whether the fair use ruling should stand since Righthaven did not have standing.
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Anonymous Coward, 6 Dec 2011 @ 9:23am

How is this "getting into bed with Righthaven?"

They are arguing that Righthaven had no standing to pursue its claims of copyright infringement.
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Anonymous Coward, 6 Dec 2011 @ 9:25am

Re: Re: Re: Re:
Um, no. This has nothing to do with any "sentencing" for "fraud."
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average_joe (profile), 6 Dec 2011 @ 9:29am

Re: Re: Re: Re:
They aren't separate issues. Without standing there is no jurisdiction.
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Anonymous Coward, 6 Dec 2011 @ 9:29am

Re: Re: Re: Re:
Standing is an element of subject matter jurisdiction.
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Anonymous Coward, 6 Dec 2011 @ 9:32am

Re: Re: Re: Re:
No, they are not completely separate concepts. Standing is required for subject matter jurisdiction. Rather, standing is a sub-concept of the broader subject matter jurisdiction concept. Without subject matter jurisdiction, a federal court is not supposed to do a thing.

That is a separate concept from, say, personal jurisdiction.
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Anonymous Coward, 6 Dec 2011 @ 9:37am

Re:
I see they actually take no position on whether there was/wasn't standing.

At any rate, they are not trying to disturb the ultimate judgment against Righthaven.
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Chosen Reject (profile), 6 Dec 2011 @ 10:21am

Re: Re: Re: Re: Re:
Then help me understand this. From all that I've read on the matter (admittedly brief) subject matter jurisdiction is simply the jurisdiction on the type of law (divorce law, copyright law, bankruptcy law, etc). This court as far as I'm aware has subject matter jurisdiction, as they are a copyright court (or is that where I'm wrong). The court has personal jurisdiction as well. So either I'm not fully understanding subject matter jurisdiction, or the court had jurisdiction and what they did was right.
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Chosen Reject (profile), 6 Dec 2011 @ 10:26am

Re: Re: Re: Re: Re: Re:
Never mind, I found it here.
When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.
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Ima Fish (profile), 6 Dec 2011 @ 10:35am

Re: Re: Re:
But you're still assuming the standing issue is valid. The courts which have used standing to dismiss the Righthaven lawsuits are not relying on a binding US Supreme Court decision, they're relying on 9th circuit decisions which hold that copyright holders cannot contract away the mere right to sue.

Other federal circuits might come to a different conclusions on that same issue, so the trial court in this case did what trial courts are supposed to do. It gave alternative bases for the dismissal.

Once again, you've cited no law that says a court cannot provide alternate bases to rule on an opinion. How many times to I have to repeat this?
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average_joe (profile), 6 Dec 2011 @ 10:57am

Re: Re: Re: Re: Re: Re: Re:
You've got it. If you look at the original complaint against Hoehn: http://ia600408.us.archive.org/32/items/gov.uscourts.nvd.78697/gov.uscourts.nvd.78697.1.0.pdf

It says: "JURISDICTION 8. This Court has original subject matter jurisdiction over this copyright infringement action pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1338(a)."

Section 1331 provides: "Federal question. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Since Righthaven is suing Hoehn for violating the Copyright Act, a "law . . . of the United States," i.e., a federal law, then the district court has subject matter jurisdiction.

The other statute listed, Section 1338(a), is just an alternate statute that gives the district court subject matter jurisdiction. It provides that: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks."

Either one of those statutes alone suffices to establish subject matter jurisdiction.

Standing, by comparison, comes out of Supreme Court jurisprudence. It's judge-made law. Put simply, it's based on the idea that you must have the proper parties before the court before the court has the power to hear the "case or controversy." Without having the proper parties, the court cannot have subject matter jurisdiction.

That's just a sketch. Hope it helps.
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Anonymous Coward, 6 Dec 2011 @ 10:59am

R.I.A.A. = Real Ignorant Asshats or America
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average_joe (profile), 6 Dec 2011 @ 11:13am

Re: Re: Re: Re:
Once again, you've cited no law that says a court cannot provide alternate bases to rule on an opinion. How many times to I have to repeat this?

My understanding is different, and I think is amply supported by the text I quoted above. You can have alternate bases in general, but not when it comes to jurisdiction. A court has a duty to determine up front and on its own whether it has subject matter jurisdiction, even if the parties don't raise the issue themselves. Once a court determines it does not (and let's assume there was leave to amend and all that), then the only proper move is to dismiss. The judge can't be wishy-washy when it comes to jurisdiction. A "federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). That says it all. The court must decide either: (1) the court has subject matter jurisdiction, or (2) the court does not have subject matter jurisdiction. There is no "maybe I do and maybe I don't" as you suggest.
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Anonymous Coward, 6 Dec 2011 @ 11:24am

Re: Re: Re: Re: Re: Re:
"From all that I've read on the matter (admittedly brief) subject matter jurisdiction is simply the jurisdiction on the type of law (divorce law, copyright law, bankruptcy law, etc)."

It's broader than that. For example, there must be standing and an actual "case or controversy" for a court to have subject matter jurisdiction.
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Anonymous Coward, 6 Dec 2011 @ 11:26am

Re: Re: Re: Re: Re:
Specifically, subject matter jurisdiction. Listing alternative bases for dismissal in addition to lack of personal jurisdiction wouldn't be as big a deal.
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average_joe (profile), 6 Dec 2011 @ 1:07pm

Re: Re: Re: Re: Re: Re:
Specifically, subject matter jurisdiction. Listing alternative bases for dismissal in addition to lack of personal jurisdiction wouldn't be as big a deal.

Yes, thank you. What I said applies only to subject matter jurisdiction. Personal jurisdiction works differently since the court generally won't consider it unless the defendant challenges it. And if the defendant doesn't challenge it early on, it's waived. Here, Hoehn at first reserved the right to challenge personal jurisdiction but then later waived that right, if I recall correctly.
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abc gum, 6 Dec 2011 @ 5:43pm

Re: Re: Re: Re: Re:
"Um, no. This has nothing to do with any "sentencing" for "fraud.""

Ummm - how about contempt of court then.
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dwg, 7 Dec 2011 @ 10:39am

No, no, this is actually good.
Nice to see the RIAA stick its dick in the dirt and admit where its loyalties lie. There's nothing stopping labels from withdrawing from the RIAA, as far as I know, and refusing to endorse it or benefit from its assfistance. I know this is a short-term loss, and labels are allergic to these, but think of the PR upside for the label that says enough is enough as a result of this RightHaven thing and bails. Even if that same label goes on to promote its same agenda as always--maximalist copyright draconianism and so forth--it would benefit hugely from the PR of dissociation from an organization that aligns with an illegal troll.

Then another might do that. And another. Splintering = good, right?

Whoa! I just had the weirdest dream. Was I talking in my sleep just now?
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