I have much to catch up on after my blogging hiatus due to a very busy few months but the Ninth Circuit opinion today confirming the demise of Righthaven is short and to the point and worthy of a quick mention.
The gist of the case is that Righthaven filed copyright infringement claims against Wayne Hoehn and Thomas DiBiase for posting articles from the Las Vegas Review-Journal online. Righthaven claimed it had the right to sue for copyright infringement based on assignment agreements from the original owner of the copyrights, Stephens Media LLC, the owner of the Las Vegas Review-Journal.
The district court concluded that Righthaven did not have standing to sue because the assignment agreements (as well as other related documents) gave Righthaven nothing more than the bare right to sue alleged infringers. In the case of Hoehn, the district court also granted summary judgment in his favor on his fair use defense. You can find more details about the cases at the district court level here and here.
I have to give credit to an opinion that starts off by describing a story Abraham Lincoln told and manages, fairly effortlessly, to tie the story to the case before the court:
Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.
The Ninth Circuit then went into more detail but essentially agreed entirely with the district court's conclusion that Righthaven lacked standing because under Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881 (9th Cir. 2005) (en banc), "the assignment of the bare right to sue for infringement, without the transfer of an associated exclusive right, is impermissible under the Copyright Act and does not confer standing to sue." "That covers Righthaven," the Ninth Circuit concluded, "for all it was really assigned was a bare right to sue for infringement."
But in the absence of standing to sue, the district court lacked subject matter jurisdiction over the case, the Ninth Circuit concluded, and therefore the district court's alternative basis for its decision in favor of Hoehn--fair use--could not stand. The Ninth Circuit thus vacated that portion of the district court's decision addressing the fair use defense.
The case cite is Righthaven LLC v. Hoehn, Appeal Nos. 11-16751, 11-16776 (9th Cir. May 9, 2013).