Wednesday, Oct. 6, 2010 | 2:05 a.m.
The cash register continues to ring at Las Vegas copyright enforcement company Righthaven LLC, which has reached settlements with at least seven more defendants it had sued over unauthorized online postings of Las Vegas Review-Journal stories.
The seven settlements disclosed in recent days — combined with previously-reported settlements — bring to 43 the number of Righthaven copyright infringement lawsuits where settlements have been disclosed.
Righthaven has since March filed 144 lawsuits over Review-Journal material in federal court in Las Vegas.
Besides the cases that have been settled, others are being litigated, others have resulted in defaults against defendants for not answering the lawsuits and others sit stagnant with the defendants unserved with the lawsuits.
The 43 settlements do not include cases with multiple defendants in which some defendants have settled while the case remains open against the other defendants.
It’s believed Righthaven is settling its infringement cases for thousands of dollars but for less than five figures. It’s unknown if the company is profitable or whether the settlements cover its staff salaries, court filing fees, copyright fees and other expenses.
The privately-held company is owned by Las Vegas attorney Steven Gibson, managing partner of the Las Vegas office of the Detroit law firm Dickinson Wright PLLC; and an entity associated with Review-Journal owner Stephens Media LLC.
The latest settlements were reached with Righthaven defendants:
• Americans For Democratic Action and its codefendants
• Assured Lender Services and codefendants
• Josephine Franklin
• Stephen Meenehan
• Omnia Alliance LLC and codefendants
• Paula Bliss
• Verticalscope USA and codefendants
While settlements may bring in some cash, several other cases are hotly contested and defense attorneys and defendants defending themselves are keeping Righthaven attorneys busy researching and writing legal briefs and making court appearances.
For instance, Righthaven will have to deal with this argument presented recently by Henderson attorney Jason Wiley of the law firm Woods Erickson Whitaker & Maurice LLP:
“Plaintiff cannot, in any way, allege that it suffered damages based upon the conduct of the (copyright) assignor, the Las Vegas Review-Journal,” Wiley wrote in a filing in the case of San Clemente, Calif., businessman Jeffrey L. Nelson, accused of posting a Review-Journal story on his website.
“Quite simply, the material at issue in the litigation was provided to online viewers at no cost. Thus, even if each and every allegation in plaintiff’s complaint is true, there is no way plaintiff was damaged,” he wrote in urging the court to decline jurisdiction in the matter.
“Plaintiff is on a copyright witch hunt as a result of obtaining/being assigned the copyrights to articles published in the Las Vegas Review-Journal,” he wrote. “Online viewers of the (Review-Journal) website do not have to pay subscription fees, they do not have to pay to access the website, and they do not need to log in or provide any personal information to access the very same articles that appear in the print version of the newspaper.
“The decision that newspapers made over a decade ago upon the advent of online content to provide their content for free has plagued newspapers and led to a decline in subscriptions and newspaper profitability. While defendants empathize with the newspapers’ plight, it was a decision that was freely accepted by said newspapers and those persons that managed the periodicals,” he wrote.
Two other Las Vegas attorneys, James Olson and Michael Stoberski of the firm Olson, Cannon, Gormley & Desruisseaux, in the meantime, are pressing their argument that a Righthaven case against the Center for Intercultural Organizing in Portland, Ore., benefiting immigrants there, should be dismissed because the center has nothing to do with Nevada — meaning the Nevada court may not have jurisdiction.
This is an issue important for Righthaven and its out-of-state defendants and one that has been addressed before.
One of the Las Vegas federal judges hearing Righthaven cases, Chief U.S. District Judge for Nevada Roger Hunt, on Sept. 2 rejected the argument of the Dr. Shezad Malik Law Firm P.C. in Texas that the Nevada court lacks jurisdiction to hear the case since Malik doesn’t do business in Nevada.
Citing precedent established by the 9th U.S. Circuit Court of Appeals, Hunt agreed with Righthaven that as an alleged willful copyright infringer of material belonging to a Nevada company, Malik had “purposely availed” itself to jurisdiction in Nevada.
But now the Olson, Cannon, Gormley & Desruisseaux attorneys — along with Lewis and Roca LLP attorneys in another case — are challenging Hunt’s ruling.
The Olson, Cannon attorneys say precedent in the 9th Circuit is that willful copyright infringement is just one of three prongs to be tested to determine if a court has jurisdiction over a defendant.
The other prongs are that the lawsuit must be related to the defendant’s activities in the plaintiff’s forum, meaning its home state or federal court district; and that “the exercise of jurisdiction must be reasonable.”
“The purposeful availment element prong is only one of three that must be satisfied to establish jurisdiction,” the Olson, Cannon attorneys said in a Sept. 27 filing. “A review of the Malik order shows that the court failed to address the remaining factors.”
A similar argument was made by Lewis and Roca attorneys in the case of Righthaven defendant MajorWager.Com.
“The personal jurisdiction analysis turns on the specific facts of each case,” they wrote in a Sept. 13 filing. “Judge Hunt’s order in Malik did not include any substantial analysis of the personal jurisdiction issue.”
The Olson, Cannon attorneys in the Center for Intercultural Organizing case earlier dropped an argument that Righthaven didn’t have standing to sue because it didn’t own the copyright at the time of the alleged infringement.
In their latest filing, they summed up the complaint against their client like this:
“As this court is aware from the media attention garnered by the numerous complaints filed in this jurisdiction, plaintiff was solely established to operate under a business model in which it trolls the Internet to locate articles it believes originated from the Las Vegas Review-Journal website without the express consent of the copyright holder. In most cases, the complaints are filed against people or organizations who do not profit in any way from posting such articles and that are already offered for free on the Las Vegas Review-Journal website. Rather than issue any type of cease and desist letters, plaintiffs immediately file suit and attempt to extract settlement from defendants.”
Righthaven and the Review-Journal, however, say the lawsuits are necessary to stop online infringement of Review-Journal material.