Apr 20, 2011

Kurt Opsahl: Righthaven lacks exclusive copyright ownership of Stephens Media news articles


Read supporting documents at the Electronic Frontier Foundation, including Righthaven's secret Strategic Alliance Agreement that Righthaven fought to keep from public view. Righthaven LLC is threatening to sue MAL for defending veteran Maj Denise Nichols (ret) and attacking Righthaven's inclination to ... sue.

Commentary by Kurt Opsahl in the Electronic Frontier Foundation:
For several weeks EFF and co-counsel Fenwick & West have been trying to persuade a federal district court to unseal a critical document Stephens Media produced in Righthaven v. Democratic Underground. The document, the Strategic Alliance Agreement between Righthaven and Stephens Media (publisher of the Las Vegas Review-Journal), and our accompanying supplemental brief were unsealed on [last] Friday.

As the court explained, “Righthaven and Stephens Media have attempted to create a cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar, with defendants who do not want to incur the costs of defending the lawsuits.” While Righthaven’s business is suing bloggers for copyright infringement, it is not a publisher. It does not produce the works that are the basis for its numerous lawsuits. Instead, it trolls the Internet, looking for news articles published by Stephens Media (Las Vegas Review-Journal) or Media News Group ( Denver Post) and, when it finds them, gets the publisher to “assign” the copyright so it can file a lawsuit. At least, that was the public story.
Getting this assignment right was essential because copyright law does not permit a person to sue for infringement unless that person’s own copyrights (e.g., the rights to reproduce and distribute a work) are actually being infringed. In other words, you have to have some real skin in the game. Thus, in each lawsuit, Righthaven alleged ownership of the copyright rights. ...

As the Court correctly noted, “consider[ing] the multitude of cases filed by Righthaven, on the claimed basis that Righthaven owns the copyrights to certain Stephens Media copy, it appears to the Court that there is certainly an interest and even a right in all the other defendants sued by Plaintiff to have access to this material.” Now that the Agreement is public, Stephens Media and Righthaven have a lot of explaining to do. Per the Court’s order, the companies might start by explaining why the Strategic Alliance Agreement does not torpedo their case against Democratic Underground (their justification is due by May 8). We look forward to responding.

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