Copyright

Righthaven LLC v. Hoehn

Date: 

01/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wayne Hoehn

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:11-cv-00050

Legal Counsel: 

Marc Randazza, James M DeVoy of Randazza Legal Group

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against Wayne Hoehn.  Righthaven alleged that Hoehn copied an article from the Las Vegas Review-Journal without permission and posted it to the forums of the website Madjack Sports.

In his answer, Hoehn argued that his use of the article was protected as fair use, and that the court lacked jurisdiction over the case, as Hoehn is a Kentucky resident, the website in question is hosted in California, and his comments concerned matters in California and Illinois. 

Hoehn filed a motion for summary judgment on February 2, 2011, arguing that his copying of the article was for a transformative purpose and educational use.  As such, Hoehn wrote, his copying is protected as fair use and as Righthaven failed to show otherwise, he is entitled to summary judgment.  In its response, Righthaven argued that there are too many genuine issues of fact regarding Hoehn's copying to warrant summary judgment, and that Hoehn's copying was not fair use.

Update:

3/24/2011 - Hoehn filed a response to Righthaven's opposition to his motion for summary judgment, arguing that the court has all the facts it needs to rule on summary judgment.  Hoehn's substantive argument relies heavily on U.S. District Judge James Mahan's March 18 decision to dismiss another Righthaven lawsuit, Righthaven LLC v. Center for Intercultural Organizing, on fair use grounds.  In that case, the defendant copied an entire article for educational purposes.  Hoehn argued that the facts of his case are analogous, and therefore deserving of the same fair use protection.

4/17/2011 - Hoehn filed a motion to dismiss for lack of subject matter jurisdiction, based on the recently-unsealed agreement that purported to assign Stephens Media's copyright in various content to Righthaven.  Hoehn argued that the agreement, which was unsealed by the court hearing Righthaven LLC v. Democratic Underground LLC, shows that Righthaven lacks the standing to sue because Righthaven was not the exclusive holder of any rights in the copyrighted material at issue in the lawsuit.  Under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005), a plaintiff must be the exclusive holder in a copyright to sue.  Under the unsealed agreement, Stephens Media retained exclusive rights in the works, thereby preventing Righthaven from being able to sue on the copyright.

6/20/2011 - Court granted Defendant's Motions to Dismiss for Lack of Subject Matter Jurisdiction and for Summary Judgement. 

CMLP Notes: 

More docs from Randazza - AAB 3/24/11

More docs from Jay - AAB 4/18/11

Content Type: 

Priority: 

2-Normal

Jurisdiction: 

Subject Area: 

Software Best Practices and Open Source Derivative Works

We received a request not long ago from one of the lawyers in our Online Media Legal Network who is looking for legal resources on a couple different issues tied to software development, particularly open source software development.  And frankly, they're the sorts of resources that we expect more and more lawyers will have need for.  Thus, we're reposting the requests here - along with my first stab at researching them - in the hopes of drumming up a bit of crowdsourcing to find the answers.

Jurisdiction: 

Subject Area: 

Content Type: 

Media Bloggers Assn Files Amicus Brief in Righthaven Case, Blasts Business Model Behind Lawsuits

Yesterday, the Media Bloggers Association filed an amicus brief in Righthaven LLC v. Hyatt, urging a federal judge in Nevada to award only minimal damages and no attorney's fees to Righthaven against a blogger who failed to appear in the case and is facing a default judgment.  We've covered a number of Righthaven lawsuits in our legal threats database, but this case now has a spicy twist.

On October 6, 2010, Righthaven sued Bill Hyatt, who operates a blog called "News for Everyone" (appears to be shutdown), for copyright infringement, claiming that he had copied a Las Vegas Review-Journal entertainment column titled "FX's Manly Man Shows Hold Outsider Appeal."  After Hyatt didn't respond to the lawsuit, Righthaven filed a motion for default judgment, asking the court to award it control of the domain name for Hyatt's website, $150,000 in damages, and $1,850 in legal fees and costs.

Jurisdiction: 

Subject Area: 

Righthaven LLC v. Hyatt

Threat Type: 

Lawsuit

Date: 

10/06/2010

Party Receiving Legal Threat: 

Bill Hyatt

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, District of Nevada

Case Number: 

2:10-cv-01736

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against Bill Hyatt, a New York blogger.  Righthaven alleged that Hyatt copied an article from the Las Vegas Review-Journal without permission and posted it on his website, 1ce.org.

After Hyatt did not respond to Righthaven's lawsuit, on February 10, 2011, Righthaven filed a motion for default judgment and demanded it be awarded attorney fees, $150,000 in statutory damages, and an order that 1ce.org be transferred from Hyatt to Righthaven.

Update: 

2/23/2011 - The Media Bloggers Association ("MBA") moved to file an amicus brief with the court.  In the brief, the MBA argued that Righthaven's claim to ownership of the copyright in the article in question is dubious, as the copyright assignment appears to be invalid.  The MBA also argued that Righthaven should not be awarded any more than nominal damages at most, as it "is not a content producer trying to preserve ts relevant market from the unceasing raids of content pirates, but a dedicated litigation house that acquires rights from other entities solely to sue essentially defenseless 'infringers' for their supposed infringement."  And the MBA argued that the court lacked jurisdiction to order the transfer of 1ce.org to Righthaven, as such an award is only an appropriate remedy in cybersquatting cases, which this is not.

4/14/2011 - The court granted the MBA's motion to file an amicus brief.

4/14/2011 - The MBA files the amicus brief.

4/19/2011 - The MBA files  a supplement to their amicus brief containing a "Strategic Alliance Agreement" (SAA) between Righthaven and Stephens Media, alleging that the SAA is the document that Righthaven relies upon for its right to sue for violations of Stephens Media copyrights.

4/19/2011 - Plaintiff Righthaven files a motion to strike the supplement.

4/28/2011 - Plaintiff Righthaven and the MBA agree to a stipulation for an extension of time to respond the MBA amicus brief. The stipulation also allows the MBA to file the SAA.

5/05/2011 - The court issues an order approving the stipulation filed on 4/28/2011.

5/06/2011 - The MBA withdraws its supplement filed 4/19/2011, stating that the stipulation filed 4/28/2011 allowing them to file the SAA renders the supplement unnecessary.

5/10/2011 - Righthaven files a response brief to the MBA's amicus brief in which it characterizes the MBA brief as a late attack on its business model, stating that the MBA’s filing is untimely after the Defendant’s default. Furthermore, Righthaven argues that even if the MBA was not too late, it lacked standing as a third party not affected by the contract. Finally, Righthaven states that the record and the SAA between Righthaven and Stephens Media shows that all rights of the copyright were sold to Righthaven, not just the right to sue as the amicus brief alleges.  In support of this statement, Righthaven submits the declarations of its CEO, Steven A. Gibson, and the General Counsel of Stephens Media, Mark A. Hinueber, both of whom rely upon a “Clarification and Amendment to the Strategic Alliance Agreement” effective January 18, 2010, which is attached to the declarations.

5/16/2011 - The MBA files a reply brief to Righthaven's response, arguing that even in light of the “Clarification,” the SAA is still nothing more than an attempted transfer of a bare right to sue for copyright infringement without a true transfer of exclusive copyright rights as required by the Copyright Act. Specifically, the MBA cites to the fact that Stephens Media still retains a right of reversion of the copyright under the Clarification and because Righthaven must give thirty days notice to Stephens Media for any use of the copyright other than litigation.  Thus, the MBA argues, Stephens Media never assigned its copyrights fully to Righthaven.

Content Type: 

Subject Area: 

CMLP Notes: 

Randazza sent us the amicus brief - AAB 2/24/11

Jay emailed us about the motion being granted. - AAB 4/15/11

Jurisdiction: 

New Conference for Internet Law Scholars

Call For Papers:

The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester.

Subject Area: 

Righthaven LLC v. Democratic Underground

Date: 

08/10/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Democratic Underground, LLC; David Allen

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-01356

Legal Counsel: 

Andrew P. Bridges, Winston & Strawn; Kurt Opshal, Electronic Frontier Foundation

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On August 10, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website Democratic Underground ("DU") and its owner, David Allen. 

As illustrated by an exhibit to the Complaint, a DU user going by the screen name "pampango" posted the first four paragraphs of a Review-Journal article entitled "Tea Party power fuels Angle" in the website's forums on May 13, 2010, with a link back to the remainder of the 34-paragraph article on the Review-Journal website. The Complaint seeks statutory damages for willful infringement, transfer of the democraticunderground.com domain name, and costs and attorneys' fees.

On September 27, 2010, attorneys for DU, including attorneys with the Electronic Frontier Foundation, filed an Answer and Counterclaims against Righthaven, seeking a declaratory judgment of noninfringement, as well as costs and attorneys' fees.  The counterclaims also named Stephens Media.

Update:

11/15/2010 - Righthaven moved to voluntarily dismiss with prejudice its complaint against DU.  Righthaven said that its decision was based on an intervening fair use ruling in Righthaven LLC v. Realty One Group, Inc., and argued that it would be unfair to force Righthaven to continue to litigate its present case.

11/17/2010 - Stephens Media moved to dismiss or strike DU's counterclaims against it.  Stephens Media argued that no controversy existed between it and DU, and that DU failed to state a claim against Stephens Media.  Stephens Media also partially joined Righthaven's motion to voluntarily dismiss its complaint.

12/7/2010 - DU filed briefs in opposition to both Righthaven's motion for voluntary dismissal and Stephens Media's motion to dismiss.  DU argued that Righthaven's complaint was meritless from the start, and that DU was entitled to seek attorneys fees even if Righthaven dropped the complaint.  DU also argued that its counterclaims against Righthaven did not depend on Righthaven's complaint, and thus still merited litigating.  Regarding the Stephens Media motion, DU argued that its counterclaim against Stephens Media did set out a controversy between the parties, and that the dismissal of Righthaven's complaint had no bearing upon that controversy.

3/4/2011 - DU filed a motion to for leave to file a supplemental memo addressing new evidence relating to various pending motions.  DU also moved to seal its motion as the evidence contained documents marked "Confidential Attorneys’ Eyes Only" by Stephens Media.  DU said it would seal the documents until it could discuss with opposing counsel which portions should be made publicly available.

3/29/2011 - DU moved to unseal the documents.  DU stated that Stephens Media and Righthaven refused to lift its designation of  "Confidential Attorneys’ Eyes Only" and did not reach a stipulated resolution with DU.  DU added that Stephens Media and Righthaven failed to file any justification with the court for keeping the documents sealed.  Thus, DU argued, they failed to meet their burden of showing why the documents should remain sealed, and so the documents should be made public.

4/11/2011 - The court granted DU's motion to unseal the documents.  The documents were revealed to include a "Strategic Alliance Agreement" between Stephens Media and Righthaven, describing the terms of copyright assignments for the purposes of litigation against infringers.  The agreement states among other things that Righthaven has no right to exploit the copyrights at issue, other than via recovery from lawsuits, and that Stephens Media retains control over who Righthaven sues.

6/14/2011 - Court concluded that there was no absolute transfer of any right within copyright, and that Stephens Media, the original copyright holder, retained actual control even over the right to sue for infringement. Finding that "[p]ursuant to Section 501(b) of the 1976 Copyright Act, 17 U.S.C. § 101, et. seq., only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement," the court held that Righthaven lacks the ability to bring the instant case. As such, it grants Democratic Undergound's motion for summary judgment, and dismisses as moot the Motions from Stephens Media and Righthaven. 

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Hey, When Did This Slope Get so Slippery? The Danger of Self-Surveillance in Three-Strikes Internet Laws

I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money.

Jurisdiction: 

Subject Area: 

Back in Court, GateHouse Gives Not Great News Based on Creative Commons License

GateHouse Media, Inc., a publisher of local newspapers is suing That's Great News, LLC (TGN) in Illinois federal district court, claiming breach of contract and copyright infringement.

Jurisdiction: 

Subject Area: 

Content Type: 

GateHouse Media v. That's Great News

Threat Type: 

Lawsuit

Date: 

06/30/2010

Party Receiving Legal Threat: 

That's Great News, LLC

Type of Party: 

Media Company

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

U.S. District Court for the Northern District of Illinois, Western Division

Case Number: 

3:10-cv-50165

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

On June 30, 2010, GateHouse Media, Inc., a publisher of local newspapers around the country, sued That's Great News, LLC (TGN), in the U.S. District Court in the Northern District of Illinois. The complaint alleged breach of contract, copyright infringement, trademark infringement, false advertising, and unfair competition.

TGN sells plaques with article reprints to the people and companies featured in the articles. According to allegations in the complaint, TGN had reprinted copyrighted materials from GateHouse's newspapers, including the Illinois paper Rockford Register Star,without authorization. Also according to GateHouse, TGN displayed GateHouse materials on its own web site "as an example of the reprints it sells," which violated the noncommercial and no-derivative works limitations of the Creative Commons license.

Furthermore, GateHouse argued that TGN's conduct violated the terms of a settlement agreement the parties signed on or about October 8, 2008.  According to GateHouse's complaint, GateHouse sent TGN a cease and desist letter on September 10, 2008, after which TGN agreed "to permanently cease the unauthorized copying of original content appearing in any GateHouse newspapers or websites."

On July 26, 2010, TGN moved to extend the time to file its answer until August 9, 2010. 

Content Type: 

Subject Area: 

CMLP Notes: 

I'm not sure I treated this threat properly. I tried to write a sentence or two reagrding each of GateHouse's claims since there are so many of them.

Jurisdiction: 

Threat Source: 

Blog Post

No Safe Harbor Offline

Last week YouTube won a landmark victory against Viacom in NY federal court. YouTube successfully argued that it was protected from Viacom's copyright infringement claims by the "safe harbor" provision of the Digital Millennium Copyright Act (DMCA).

Jurisdiction: 

Subject Area: 

Content Type: 

Princeton v. RedState

Threat Type: 

Correspondence

Date: 

05/14/2010

Party Receiving Legal Threat: 

Eagle Publishing, Inc.

Type of Party: 

School

Type of Party: 

Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

On May 14, 2010, Princeton University Archivist and Curator of Public Policy Papers, Daniel J. Linke, sent an email to RedState, a right-of-center blog, requesting that RedState remove a copy of Elena Kagan's undergraduate thesis from their web site. Kagan, who was recently nominated by President Obama to fill a vacancy on the U.S. Supreme Court, wrote her thesis, "To the Final Conflict: Socialism in New York City, 1900-1933," in 1981, when she was a senior in the History Department at Princeton. Linke's email explained that "[c]opies [of the thesis] provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only." Linke further asserted that "[a]ny electronic distribution is prohibited." 

RedState made Kagan's thesis available for downloading as a PDF file on May 13, 2010 in the body of a blog post entitled "BREAKING: We Have Elena Kagan's College Thesis" by Erik Erickson. After receiving Linke's email, RedState removed the thesis from its web site and provided the following explanation: "PULLED AT THE REQUEST OF PRINCETON UNIVERSITY EXERCISING ITS COPYRIGHT RIGHTS."

Still, on May 14, 2010, the thesis was uploaded on Scribd.com, where it can be read in its entirety. The entire thesis is also available on infidelsarecool.com. Extensive excerpts from the thesis were published in Newsweek on May 12, 2010. Finally, the White House announced that it will make the document available to the general public, thus ending the impasse between Princeton and the online distributors of Kagan's thesis.

According to RedState, Princeton was trying to protect its revenue stream from hard copies of the thesis, which it sold for $57.  Yet, according to Politico, "the copyright in the thesis likely belongs to Kagan, not Princeton."

Content Type: 

Subject Area: 

Threat Source: 

RSS

CMLP Notes: 

I'm not sure whether any further information needs to be added to the decsription. Marina

Jurisdiction: 

Hamptons Online v. Florio

Date: 

04/27/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert M. Florio; Vue Master Media, LLC; Andrea J. Aurichio; Christine Bellini; Matthew J. Cross; Deborah A. Capone; "John Does Nos. 1-10"

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:10-cv-01865

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On April 27, 2010 Hamptons Online, LLC sued Robert Florio (its former manager), VUE Master Media (the publishing company employing him) and several other former employees for, among other claims, copyright infringement, misappropriation of trade secrets and unfair competition. Hamptons Online publishes a website on "lifestyle and entertainment information relevant to those who live, work and vacation in the Hamptons" along with a similar site for the North Fork community in Long Island, NY.

According to the complaint, the defendant Robert Florio was Hamptons Online's sole manager from July 2000 through September 2009. At some point before he was terminated, he "made and took possession of unauthorized copies of electronic information stored on Hamptons Online's password-protected computers and servers," including the source code for the Hamptons and North Fork websites and trade secrets, which included contact information for Hamptons Online's advertising clients. (Complaint ¶ 34).

Also according to the complaint, following termination Florio created and became a member of VUE Master Media, LLC, which hired Hamptons Online's employees, including defendants Bellini, Aurichio, Cross, and Capone. (Complaint ¶¶ 40-45). VUE Master Media launched websites for the Hamptons and the North Fork of Long Island in direct competition with Hamptons Online's websites, and which use Hampton Online's proprietary source code, according to the complaint (¶ 49).

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Subject Area: 

Jurisdiction: 

Threat Source: 

Blog Post

FTC's Provocative Discussion Paper on Saving Print Media

The Federal Trade Commission—which last year created guidelines to impose ethical standards on bloggers—is now taking on the ambitious task of saving the print media in the Internet era.

Jurisdiction: 

Subject Area: 

Who Took Your E-book?

E-readers are spreading both in the U.S. and abroad. Last week the New York Times reported that the Kindle, previously available only on Amazon.com, will be sold in brick-and-mortar stores by Target. College students could grab one when they pick up their school supplies.

Jurisdiction: 

Subject Area: 

East Coast Enlightenment - Protect the Innocent

Record

Under current U.S. copyright law (17 U.S.C. 504), the owner of a copyrighted work found to be infringed may seek "statutory damages" rather than actual damages.

Subject Area: 

Righthaven LLC v. PLAN

Threat Type: 

Lawsuit

Date: 

05/04/2010

Party Receiving Legal Threat: 

Progressive Leadership Alliance of Nevada; Robert Peterson

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-00637-RLH-RJJ

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company that is the assignee of copyrights in certain articles that first appeared in the Las Vegas Review-Journal and that is affiliated with the Review-Journal's owner Stephens Media LLC, filed a copyright infringement lawsuit against the Progressive Leadership Alliance of Nevada ("PLAN") and Robert Peterson, PLAN's webmaster, on May 4, 2010.

The complaint, which Righthaven filed in federal district court in Nevada, alleges that Peterson, on behalf of PLAN, copied and displayed the full text of two articles from the Review-Journal, as well as "substantial and significant portion[s]" of four additional Review-Journal articles without permission. Printouts of the articles as they appear on the PLAN website are attached as exhibits to the Complaint, and show that each of the articles appear under the "Press/Publications" tab of the PLAN website and references PLAN's political activities. 

Content Type: 

Jurisdiction: 

Subject Area: 

Righthaven LLC v. Farnham

Threat Type: 

Lawsuit

Date: 

04/14/2010

Party Receiving Legal Threat: 

Matt Farnham; Omnia Alliance LLC

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:10-cv-0539

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against Matt Farnham, a real estate agent, and Omnia Alliance LLC, the operator of Inside Real Estate, a website that describes itself as an "advanced tool for both real estate agents and home buyers and sellers on the web."

The complaint, which Righthaven filed in federal court in Nevada, alleges that Inside Real Estate displayed a "substantial portion" of two Review-Journal articles without permission.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Wendy Davis is going to write about this on MediaPost

DSA Editing

Jurisdiction: 

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