Righthaven cases may be built on faulty legal foundation
April 19, 2011 | 2:23 am
The Righthaven case just keeps getting better and better. Ars Technica had a nice piece yesterday summing up recent developments (Techdirt also had a series of Righthaven-related pieces here, here, here, and here).
In short, the EFF succeeded in having the court unseal a document describing the relationship between Righthaven and Stephens Media, the newspaper publisher who was Righthaven’s first customer. It turns out that, based on that document, Stephens is just a little more than that. Stephens splits revenues from the lawsuits with Righthaven 50/50, and has the whip hand in deciding when and if any lawsuits must be halted even after the copyright has been assigned to Righthaven.
But the biggest revelation in this document is that the copyright assignments, which most observers had been assuming were total, may for legal purposes not even be valid copyright assignments at all. The only “right” that Stephens assigns Righthaven is, essentially, the right to sue. And previous court cases have held that companies cannot bring copyright suits unless they control one of the “exclusive rights” enumerated in the Copyright Acts—rights to copy, distribute, perform, etc.—which Righthaven does not, by the terms of the agreement. There is no “right to sue.” This could, theoretically, mean that all of Righthaven’s hundreds of lawsuits could well crumble like a house of cards.
Of course, precedents only count for so much. A judge might choose to overturn a precedent if the facts in the case support it. But looking at Righthaven’s relations with this judge lately, a favorable ruling just doesn’t seem to be in the cards. In the decision to unseal this document, the judge had a number of incisive comments:
"The use of phrases, in the Motion to Strike, such as ‘underhanded,’ ‘a ruse,’ ‘blatantly ignored,’ ‘brazen attempt,’ ‘fumbling attempt,’ ‘purposefully muddle,’ and ‘complaint reeks of hypocrisy,’ is a very unprofessional attempt to attack counsel rather than address the issues," wrote the judge. "There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here."
The EFF’s legal team has done some pretty good work in this case, standing up to Righthaven for Democratic Underground. Amusingly, Righthaven is now attempting to dismiss the suit, but the EFF and Democratic Underground won’t let them, insisting that the judge deliver a ruling on the issue of fair use. Going by other judges’ remarks, it looks like Righthaven’s stuck its hand in a bear trap.
I really need more popcorn.