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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.
I'm not sure that I would call it a "victory" for Righthaven that venue motions are decided in its favor. The reasoning makes sense to me.
What matters most is this: Was the use covered by the "fair use" doctrine or not?
Unfortunately, Righthaven has muddied the waters on this by its conduct. Its business model is predicated upon using the court system as a revenue stream. Copyright enforcement is essentially an action in equity and tradition (if not the law) demands that a plaintiff comes into equity with "clean hands."
Righthaven cannot demonstrate that it has suffered any damages as far I can tell. Righthaven does not publish any material that it obtains rights to. Beyond that, Righthaven appears to acquire rights after it has found a potential infringement and then sues without notice.
It is unclear exactly what consideration is provided to the original publisher for the rights obtained. If the "consideration" being provided is a portion of any monies collected from enforcement action then champerty and barratry become issues.
It is also unclear as to just exactly what rights are being obtained since the original publisher continues to display the work *without* a copyright notice indicating Righthaven as the owner.
It is these facets of the Righthaven lawsuits that seem to be repugnant to the bench and might very well ultimately weaken the protection afforded by our copyright laws.
I think judges ruling on the jurisdiction aspect simply want the opportunity to set precedent if given the chance.
Lower courts can't set precedents beyond the judge's own court room.
Appellate courts can only set precedents in their district.
The Supreme Court is the court where precedents are set for the nation.
These rulings are very standard rulings.
There is nothing special about them.
I do think Righthaven may have less of an argument for filing cases in Colorado than Nevada because at least Righthaven has a presence in Nevada. We will see how they rule in Colorado. The Colorado judges will not be bound my any of these rulings in Nevada.
This is but a minor victory for Righthaven since it does not indicate the actual merit of the case and judges have already ruled the same way at least in Nevada.
At least in Brian Hill's case I do think they will either downright dismiss it or change venues to North Carolina due to hardship reasons and the great health risk traveling to Colorado would put on him.
Since neither Righthaven nor the defendants reside in Colorado and since The Denver Post is not a party to the lawsuit Colorado has no connection with the case. To hold it in Colorado makes as much sense as holding in Guam. To allow a Colorado to be a venue when it has no connection with either party would open the door to court shopping or used to inflict the most hardship on the defendant.
Rock
That is true up to a point however most appellate courts more times than not follow each others precedences or at least give them great weight. Only a tiny fraction of cases actually make it to the Supreme Court and civil cases like this hardly ever unless there is some kind of compelling Constitutional question. Nine Justices can only hear so many cases so they are extremely selective on which ones they choose. I doubt they would waste their time with the likes of a copyright troll.
Righthaven will have a difficult time making it past any appellate court.
Righthaven insisting on burdening the defendants with travel costs will come back to bite them in many cases. These costs will weigh heavily on counter-suits and with Righthaven filing even more questionable cases the more judges will pass the costs directly on to Righthaven.
Righthaven has been burned badly by suing mom-and-pop sites that have no assets and are either impossible or very difficult to collect on. They have set their sights on bigger fish but they are getting careless. They are filing suits on sites that are less likely to settle and ones that have the means and motivation to fight and counter sue.
Gone are the days were Righthaven could count on quick and easy settlements.
Rock is right for once. You know the easiest way to lose a juisdiction fight: go to the jurisdiction to fight it. If you admit the court has jurisdiction for a motion hearing, you basically admit it has it for the trial. You have a much better chance of winning by not answering the suit, then filing against personal jurisdiction when the plaintiff goes to your jurisdition to have the default judgment enforced.