Appeals Court Agrees That Righthaven's Copyright Assignment Was A Sham, But Tosses Key Fair Use Ruling

from the good-and-bad dept

This isn't a huge surprise, but in Righthaven's big appeal concerning the key issue over which it lost all of its cases -- whether or not it had standing -- has resulted in yet another huge loss for Righthaven. The court basically agreed with every single other court that has ruled on this matter, noting that when Stephens Media "assigned" the copyrights to Righthaven, it really did no such thing. Instead, it merely assigned the bare right to sue, which you can't do under copyright law. Considering how some of our critics insisted that Righthaven would win this point on appeal, I'm curious to see how they respond. The court basically agreed with all of the points that a bunch of district court judges had all pointed out: the Strategic Alliance Agreement (SAA) left all the power in the hands of Stephens, including ultimate control over every single one of the official rights associated with copyright law under section 106. Thus, it did not, in fact, assign the copyright, and Righthaven had no standing to sue.

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.

The appeals court walks through each one of Righthaven's attempts to get around this basic fact and shows how none are even remotely persuasive, because all ultimately show the same basic argument, which is that the copyright was assigned to Righthaven who then handed back an exclusive license to Stephens. The fact that Righthaven retained none of the key copyright rights shows that this was all a sham. Or, as the court notes, it "emphasizes form over substance." The court also rejects Righthaven's claim that the agreement was later fixed, by pointing out that what matters is the standing at the time of the lawsuit.

The ruling isn't all great, however. The court did overturn the part of the Hoehn ruling in which the court had said that his use of the Las Vegas Review-Journal article (even the entire article) was fair use. Basically, this is a bit of a procedural thing. Effectively, the court is saying that once the district court ruled that Righthaven had no standing, there are no other issues to rule on, so the fair use ruling is inappropriate. This was the part of the case that the RIAA, in particular, wanted thrown out, because it doesn't want any ruling on the books saying that using an entire work might be fair use. And, on this front, the RIAA got its wish. While the court doesn't say that the use was not fair use -- and in fact notes that "we understand why the district court reached the fair use issue" -- it also notes that, legally, the court really has no right to delve into that issue after it's decided that Righthaven has no standing.

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.

This is not a huge surprise, but it is unfortunate, because the original Hoehn ruling on fair use was a great example of how using an entire work can be fair use. There are other such cases, but losing one of those rulings is unfortunate.

Either way, this should confirm that Righthaven is officially dead and buried. I can't see them appealing to the Supreme Court, though stranger things have happened (just like Prenda took over the mantle of absolutely crazy copyright trolling from Righthaven a long time ago).

Filed Under: copyright, copyright trolling, dibiase, fair use, hoehn, marc randazza, standing, thomas dibiase, wayne hoehn
Companies: righthaven, stephens media

Righthaven's Big Appeal Kicks Off With About As Much Success As Its District Court Cases

from the not-looking-good dept

These days, with the likes of Prenda Law and Charles Carreon, it feels like we've all forgotten last year's favorite legal punching bag: Righthaven. While its comical failures had resulted in at least one of its major appeals going away, the company somehow convinced another lawyer to represent it, and he actually showed up in the 9th Circuit appeals court yesterday to try to revive Righthaven's chances in two of its key cases: the DiBiase case and the Hoehn case.

Not surprisingly, Righthaven's new lawyer, Erik Syverson, is discovering he has an uphill battle ahead of him.

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.

If you don't recall, the key issue was that Righthaven never really had any control over the copyright in the cases. They involved content from the Las Vegas Review-Journal, but the agreement between Righthaven and Stevens Media (the owner of the LVRJ) made it clear that the LVRJ had full say in things and could take back the copyright at any time. In effect, the only thing really transferred to Righthaven was the "bare right to sue" and you can't do that, because such a "right" is not a separate right of copyright. You can only transfer one of the actual listed copyright rights (e.g., the right to reproduce, distribute or perform) and with that comes the ability to sue. The Silvers case referred to above is Silvers v. Sony Pictures which makes that point clear.

That said, as Joe Mullin reports in the link above, the appeals court justices seemed somewhat less bought into the idea, raised in the Hoehn case, that the use of the LVRJ material was fair use. That's unfortunate. It was a good ruling that found that even when you repost a full article it can be fair use. The argument was mainly that when Wayne Hoehn posted it, it was not for the same purpose or in any way competitive with Righthaven (who merely wanted it to sue). But the court wasn't as receptive to that argument:

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.

Hopefully the panel reconsiders before issuing its ruling. The way Hoehn used it was not the same way that Righthaven or the LVRJ were using it -- and it's that aspect that was transformative. Still, it won't surprise me if that argument fails, but it will be unfortunate. Either way, if Righthaven actually "wins" on that point, it won't much matter for the company, considering its likely to lose on whether or not it even had standing to sue in the first place. However, for those of us concerned about fair use, and how widely it can be applied, this second issue may be a lot more important. Having a strong fair use ruling on the books concerning the reposting of full content (in a particular context) would be a good thing to have, though it sounds unlikely.

Filed Under: appeals, copyright, fair use, hoehn, right to sue, righthaven, standing, thomas dibiase
Companies: righthaven

Whatever Copyrights Righthaven Might Actually Have Owned Now Transferred To Receiver For Auction

from the and-now-what? dept

This could get interesting. The latest news in the ongoing Righthaven saga is that the judge in the Hoehn case -- who had ordered Righthaven to pay attorneys fees which it never paid -- has now ordered that all of Righthaven's "intellectual property," including the many copyrights in dispute, be turned over to the receiver for auction. As you may recall, Righthaven's domain has already been auctioned off, but now it appears the copyrights will be too.

Of course, this is a bit tricky, since it's unclear what, if anything, Righthaven actually "owns" here. Even the company (when it bothered to show up in court, which was increasingly rare) started to claim that it really only held the bare right to sue -- which is what sunk its cases, since that right cannot be separated from the other, enumerated rights under copyright law. But, as the court noted, even if there's a dispute over what rights Righthaven technically has under the agreements it made with Stephens Media's Las Vegas Review Journal, the company is registered as the copyright holder on hundreds of works. And those are all being auctioned off:

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.

The order then goes on to list out the 275 copyrights that are registered in Righthaven's name. Even if the transfers were a sham, the registrations still exist. What can actually be done with them is an open question, because the sham transfer likely means that the rights are still really Stephens Media's, and if there ever were a legal dispute that would be an issue. But, in the meantime, you may soon be able to "own" a piece of copyright troll history: one of the bogus Righthaven copyright registrations, with which you can legally do, well, absolutely nothing. Though, it could be fun to see if you could convince the Las Vegas Review Journal that it needs to pay up for continuing to host the article for which you hold the copyright registration...

Filed Under: copyright, hoehn, receivorship
Companies: las vegas review journal, righthaven, stephens media

Righthaven.com Domain Sells For $3,300

from the not-that-much dept

Andrew Allemann alerts us to the news that at the close of the Righthaven.com domain auction, the domain has sold for... $3,300. That's not going to do much to help pay off the attorney fees owed to Marc Randazza. Now we just have to wait to find out who bought it and what they're going to do with it.

Filed Under: auction, domain name, hoehn
Companies: righthaven

Righthaven Files Emergency Motion To Try To Keep Its Assets

from the that's-not-going-to-work dept

Looks like Righthaven has finally reappeared... filing an "emergency motion" in the 9th Circuit appeals court trying to prevent Marc Randazza from continuing to move forward in the Hoehn case, where (as you may have heard) Righthaven has been ordered to hand over various assets (and the company's righthaven.com domain is being auctioned off). Randazza has filed a response (embedded below) in which he goes back to bringing up Herman Melville's classic story Bartleby the Scrivener, in which Bartleby never does any work because "I would prefer not to." If that sounds familiar, it may be because Randazza used that line the last time Righthaven filed for an "emergency" stay in the same 9th Circuit Appeals Court... in the same case. That time the court rejected it, and as Randazza explains, there are tons of reasons to reject it again. You can read the entire filing explaining all the reasons that Righthaven's emergency filing makes no sense -- especially since it failed to bother to oppose many of the things it's now fighting when they were happening in the district court. However, the key reason is simply procedural:

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

I used to think that Righthaven might make a useful law school case study some day, but now I'm wondering if there shouldn't be an entire class studying Righthaven in order to teach lawyers exactly what not to do in handling cases.

Filed Under: hoehn, marc randazza, righthaven
Companies: righthaven

Righthaven.com Domain Auction Has Begun

from the place-your-bids dept

As promised last week, it appears that the auction of the righthaven.com has begun over at SnapNames. The auction will apparently run until January 6th at 12:15 PT. So if you were planning to take up a collection to buy it for yourself, start counting those pennies. There have already been a few bids, and at the time I'm writing this, they're asking a bit over $1,000.

Filed Under: assets, auction, domain, hoehn, righthaven, righthaven.com
Companies: righthaven

Who Wants To Own Righthaven.com? Domain Seized, About To Be Auctioned

from the start-the-bidding dept

The latest in the continuing Righthaven saga is that as part of the efforts by the court to hand over Righthaven assets to satisfy the court order for Righthaven to pay legal fees in the Hoehn case, the righthaven.com domain has been seized and will be auctioned off. While the domain is currently listed as being in the possession of Hoehn's lawyer, Marc Randazza, Randazza says that it's actually been given to the court-appointed receiver, Lara Pearson, who is planning to auction it off. According to Vegas Inc.:

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.”

So, get out your checkbooks if you'd like to own a piece of copyright trolling history...

Filed Under: assets, attorneys fees, copyright, hoehn, marc randazza, steve gibson
Companies: righthaven

It's Official: RIAA Trying To Join Righthaven Lawsuit

from the pr-of-no-matter dept

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.

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

RIAA Really Planning To Join Righthaven Fight

from the incredible dept

We'd noted that the RIAA was thinking about joining the Righthaven appeal in the Hoehn case, specifically to argue against the fair use finding (the RIAA: not a fan of fair use rulings that say fair use can exist on the use of full works). As you can see embedded below, a lawyer representing the RIAA and the Association of American Publishers (AAP) is planning to try to join the case, arguing that the issue of standing (i.e., the fact that Righthaven doesn't have the copyrights in question) should preclude the court from even considering the fair use question. The letter below is from Hoehn's lawyer, Marc Randazza, explaining why this is not a wise move on the part of the RIAA and AAP. Here's a snippet:

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.

Once again, the RIAA is pretty braindead when it comes to any sense of what the PR impact of its actions would be, so I doubt it'll change its mind here. The standard thinking is just "expanding fair use is bad, we must fight it at all costs."

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

RIAA Thinking Of Backing Righthaven

from the can-they-get-any-more-out-of-touch dept

Every time you think the RIAA can't make things even worse for itself... it does. The latest is that it's apparently considering helping Righthaven out. Righthaven! The company that has become the total laughingstock of the copyright world, that is on the losing end of a bunch of cases and is desperately trying to get out of paying all the attorneys' fees awards that are being given to the companies, individuals and sites it has sued. Of course, as some have noted, the good thing about Righthaven is that it has tee'd up a bunch of rulings that will be useful precedents in other copyright cases.

And that's what has the RIAA scared.

In particular, the RIAA is freaked out about a couple of rulings saying that even reposting full articles can be fair use. That has the RIAA shaking, because the big labels hate the concept of fair use. The major labels are still upset at the idea that the Campbell vs. Acuff-Rose ruling means that commercial use can still be fair use. And they love the the Bridgeport Music ruling that wasn't about fair use, per se, but did take away de minimis use, saying "Get a license or do not sample."

So, now the RIAA is realizing that Righthaven -- and in particular the Hoehn ruling, which lays out in great detail why the full use of a copyrighted offering can still be fair use -- is suddenly an important battlefront in its war on fair use. Just having the line from the case "wholesale copying does not preclude a finding of fair use" freaks the RIAA out.

So we've now seen that RIAA's chief apologist litigator is suggesting that perhaps the RIAA is going to get involved in the fight (from an interview behind a paywall, so we'll just quote her words) concerning the fair use finding in Hoehn:

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

That certainly suggests that the RIAA is thinking of inserting itself into the appeals process here. Probably with an amicus brief, but it makes you wonder if they won't also consider figuring out ways to fund Righthaven to keep it afloat. There are already quite reasonable concerns that the company is effectively insolvent due to all the legal fees it owes to those it has sued. Either way, when you're at the level where you're joining forces with Righthaven, you've really hit the bottom of the barrel.

Filed Under: commercial use, copyright, fair use, full work, hoehn, jennifer pariser, music
Companies: riaa, righthaven