District Court in Nevada Hands Another Loss to Righthaven
Following close on the heels of a loss in another of its numerous copyright infringement lawsuits (previously blogged here), Righthaven suffered another defeat yesterday at the hands of the federal district court in Nevada.
Like the decision from last week, the district court concluded that Righthaven lacked standing to sue for copyright infringement because the relevant agreement establishing the contracting parties' relationship with respect to the copyright assignments gave Righthaven nothing more than the "bare right to sue" alleged infringers. Absent the corresponding transfer of an exclusive right of copyright, Righthaven did not have standing to sue, the district court held.
The district court went further, however, concluding that the "Clarification and Amendment to Strategic Alliance Agreement"--entered into after the defendant in this case had filed a motion to dismiss for lack of subject matter jurisdiction--failed to provide Righthaven with any of the exclusive rights of copyright necessary to establish standing to sue:
The May 9, 2011 Clarification provides Righthaven with only an illusory right to exploit or profit from the Work, requiring 30 days advance notice to Stephens Media [the original copyright owner] before being able to exploit the Work for any purpose other than bringing an infringement action. Stephens Media has, in its sole discretion, the option to repurchase the Copyright Assignment for a nominal amount within 14 days, thereby retaining the ability to prevent Righthaven from ever exploiting or reproducing the Work. Stephens Media's power to prevent Righthaven from exploiting the Work for any purpose other than pursuing infringement actions is further bolstered by the Clarification's provision that every exploitation of the Work by Righthaven other than pursuing an infringement action without first giving Stephens Media notice constitutes irreparable harm to Stephens Media. Stephens Media may obtain injunctive relief against Righthaven to prevent such "irreparable harm" and, pursuant to the Clarification, Righthaven has no right to oppose Stephens Media's request for injunctive relief. Accordingly, Righthaven does not have any exclusive rights in the Work and thus does not have standing to bring an infringement action.
Notwithstanding its decision granting the defendant's motion to dismiss for lack of standing, the district court went even further, addressing defendant's motion for summary judgment on the issue of fair use.
On balance, the district court readily concluded that the fair use factors favored the defendant and therefore granted summary judgment in favor of the defendant:
There is no genuine issue of material fact that the above factors favor a finding of fair use. Of the four factors, only the fact that [Defendant] Hoehn replicated the entire Work weighs against a finding of fair use. Hoehn used the Work for a noncommercial and nonprofit use that was different from the original use. The copyrighted Work was an informational work with only some creative aspects, and the Work was used for an informational purpose. Righthaven did not present any evidence that the market for the Work was harmed by Hoehn's noncommercial use for the 40 days it appeared on the Website.
The district court thus granted defendant's motions to dismiss and for summary judgment and dismissed Righthaven's complaint.
The case cite is Righthaven, LLC v. Hoehn, No. 2:11-CV-00050-PMP-RJJ (D. Nev. June 20, 2011).
