Tuesday, March 29, 2011 | 2:05 a.m.
One of Righthaven LLC's long-running copyright infringement lawsuits will continue in federal court in Las Vegas after a judge denied motions to dismiss or for a change of venue.
The ruling against Dean Mostofi illustrates something for Righthaven defendants: While two Righthaven defendants have defeated Righthaven on fair use grounds, motions for dismissal based on jurisdictional grounds continue to fail.
Another line of attack against Righthaven -- challenging its copyright assignments, is being pursued by the Democratic Underground.
Earlier challenges to Righthaven's right to sue based on those assignments were not successful.
Righthaven is the copyright enforcement partner of the Las Vegas Review-Journal and the Denver Post. Through Friday, it had filed at least 258 lawsuits since March 2010 against website owners, bloggers and message-board posters.
On the jurisdictional issue, Mostofi was sued in U.S. District Court for Nevada on June 30, with Righthaven charging he had posted material from the Review-Journal on his website without authorization.
Righthaven alleged that on the site deanmostofi.com, the defendant posted an R-J story about a lawyer being reprimanded for running misleading advertising. Only partial credit to the Review-Journal was included with the post, court records show.
Mostofi, of Potomac, Md., later filed motions for dismissal or for a change of venue to Maryland, saying: "To fight this frivolous lawsuit I have filed, pro se (without an attorney), a well-researched motion to dismiss for lack of personal jurisdiction, and I want to encourage all out-of-state defendants to file similar motions and to force Righthaven to litigate these actions in the proper venues.’’
U.S. District Judge Kent Dawson in Las Vegas, however, sided with Righthaven last week in denying both motions.
"Defendant claims lack of personal jurisdiction and argues that it would be unduly burdensome to litigate in Nevada. The assertion of personal jurisdiction satisfies due process when there are 'minimum contacts' with the forum state `such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice,"' Dawson noted in his order, citing earlier case law.
Dawson agreed with Righthaven that the Nevada court has jurisdiction over Mostofi as Mostofi, by his alleged conduct, subjected himself to being sued in Nevada.
"Not only is defendant imputed with the common knowledge that the Las Vegas Review-Journal newspaper is published and distributed in Las Vegas, which is in the forum state of Nevada, but the infringing work published on the website demonstrates that Mostofi was aware or should have been aware that the Review-Journal was the source of the infringing work," Dawson wrote.
Dawson agreed it would be a substantial burden for Mostofi to have to litigate in Nevada, but other factors favor Righthaven in establishing personal jurisdiction over Mostofi.
"Arguably, the forum state has an interest in adjudicating an infringement upon a news article originated by the forum state's largest local newspaper publisher written about actions taken by the Nevada State Bar," Dawson wrote.
"The Las Vegas Review-Journal's subscribers are purportedly primarily residents of the forum state of Nevada and the Review-Journal advertisers consist mainly of local Nevada businesses. Any infringement could reasonably be expected to affect them as well. Finally, plaintiff has named numerous defendants in other identical suits each from numerous other states," Dawson wrote.
He cited a ruling in another Righthaven case that: "The interstate judicial system would benefit from the efficient resolution of this case in the same forum as the others. This would serve fundamental substantive common social policies."
As for the change of venue motion, Dawson wrote that "plaintiff’s choice of forum is given paramount consideration" and that other than Mostofi's cost of litigating in Nevada, none of the factors in this analysis favored Mostofi.
Those factors include the location where any relevant agreements were negotiated and executed, the state that is most familiar with governing law, the parties’ contacts with the forum state, the differences in the costs of litigation in the two forums, the availability of compulsory process to compel attendance of non-party witnesses and the ease of access to evidence.
Besides Friday's lawsuit against journalist Eriq Gardner, Righthaven has sued three more website owners in federal court in Denver -- all over the same Denver Post TSA pat-down photo.
The latest defendants are:
• Shining Sea Communications Inc., an Alaska corporation; Alaska TravelGram and Scott Douglas McMurren (alaskatravelgram.com)
• Alicia F. Luke (barracudabrigade.blogspot.com)
• Rachel Bjorklund and Thoughts From A Conservative Mom (Thoughtsfromaconservativemom.com)
McMurren said he was unaware of any issue with the photo or the lawsuit and would refer the matter to his attorney.
Bjorklund, in Gresham, Ore., said the first she heard of the lawsuit or of any concern with her posting the photo was when she was contacted by the Las Vegas Sun.
Bjorklund, who blogs as a hobby for the benefit of family and friends, said she was looking for a TSA image to illustrate a point and found the image at issue on Google images -- where she said it appeared a dozen times.
"I thought it was in the public domain," she said, adding she didn't intend to infringe on any copyrights and would have removed the image if the Denver Post or Righthaven would have contacted her.
Through Google, Bjorklund recalled finding the image on a site with some sexually inappropriate commentary -- likely the deadseriousnews.com post of the photo that appears to be linked to numerous Righthaven lawsuits.
As of Monday, the deadseriousnews.com post of the TSA pat-down photo was still displayed.
Luke could not be reached for comment.
These lift to at least 54 the number of lawsuits Righthaven has filed over the photo; and to 258 overall since Righthaven started filing suits in March 2010 over Review-Journal and Denver Post material.
Separately, a Righthaven lawsuit against Bill Meyer and Bicoastal Rogue Valley LLC over the pat-down photo was closed after a settlement was reached on undisclosed terms.