Wednesday, June 15, 2011

Federal judge in Nevada deals Righthaven a body blow, says, no standing to sue, because of SAA wording

A federal judge, Roger Hunt, in Nevada has dismissed Righthaven’s suit against the Democratic Underground and ruled that Righthaven has no standing to sue. The ruling would obviously affect most or all of the other suits brought by the “copyright troll” in Nevada.

Stephen Green has the major story June 14 in Las Vegas Inc, here

The ruling, however, seems based on a technical point. The SAA (Strategic Alliance Agreement) between Stephens Media and Righthaven was worded in a way that left Stephens in control of copyrights and publication rights. Therefore, according to the way US Copyright law is to be interpreted, Righthaven has no standing to sue.

The ruling would not compromise the concept of “property rights” as libertarians and “Cato thinking” scholars see it. In ordinary circumstances (such as with my concerns over my “right” to publish my own writings when there could occur “political” conflicts of interest), the content originator still controls the right to distribute.

From an intellectual perspective, the ruling could leave open the question whether the SAA could be worded differently to confer standing. But Righthaven would then probably have to be in the business of actively publishing and distributing content. An interesting question could follow, could it have to be potentially profitable as just a content enterprise?  The question falls back to the newspaper business itself. 

But Judge Hunt has threatened other sanctions against Righthaven for misrepresentation that could lead to dismissal of all current litigation in Nevada, and support counterclaims from defendants.  US Copyright law does sometimes allow countersuits for frivolous litigation, but they tend to proceed slowly and are difficult to enforce.

Electronic Frontier Foundation has a similar story by Kurt Opsahl June 14, and a PDF of the judge’s order here.

In South Carolina, Dana Eiser has filed a counter complaint against Righthaven for unfair trade practices and “tortious interference” (a term famous from the 2002 film “The Insider”), in state court, also claiming that Righthaven breaks South Carolina law against barratry (effectively, champerty)., scribd link here

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